Lawrence S. Ebner is founder of Capital Appellate Advocacy PLLC, a boutique law firm in Washington, DC that provides independent appellate advocacy for businesses and industries throughout the United States.

Last Fall I wrote a Legal Backgrounder for Washington Legal Foundation, The Fuss Over Stare Decisis, that highlighted several October Term 2019 Supreme Court decisions in which the Justices’ debated the criteria for overturning precedent. As the April 20 decision in Ramos v. Louisiana, No. 18-5924, makes it clear, the Justices remain divided.  And given the unusual alignment of Justices in Ramos, I still wonder whether the Court’s application of stare decisis is truly principled, or whether it is just a case-by-case, result-driven expedient for saving or ditching a controversial, and even wrongly decided, precedent.

The Court held 6 to 3 that the Sixth Amendment bars states (Louisiana and Oregon) from allowing a non-unanimous jury to convict a defendant of a serious offense. In so holding, the Ramos majority overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a decision which Justice Gorsuch, writing for the Court, described as a “badly fractured set of opinions.” According to Justice Gorsuch, “[e]ven if we accepted the premise that Apodaca established a precedent, no one on the Court today is prepared to say that it was rightly decided, and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.”