2) The new rule announced in Ramos does not qualify as a “watershed” procedural rule that applies retroactively on federal collateral review. In an attempt to distinguish Ramos from the long line of cases where the Court has declined to retroactively apply new procedural rules, Edwards emphasizes three aspects of Ramos: (i) the significance of the jury-unanimity right; (ii) Ramos’s reliance on the original meaning of the Constitution; and (iii) the effect of Ramos in preventing racial discrimination in the jury process. But the Court has refused to retroactively apply other momentous cases with similar attributes. In DeStefano v. Woods, 392 U. S. 631, the Court declined to retroactively apply Duncan v. Louisiana, 395 U. S. 145, even though Duncan established the jury right itself. In Whorton v. Bockting, 549 U. S. 406, the Court declined to retroactively apply Crawford v. Washington, 541 U. S. 36, even though Crawford relied on the original meaning of the Sixth Amendment to restrict the use of hearsay evidence against criminal defendants. And in Allen v. Hardy, 478 U. S. 255 (per curiam), the Court declined to retroactively apply Batson v. Kentucky, 476 U. S. 79, even though Batson held that state prosecutors may not discriminate on the basis of race when exercising individual peremptory challenges. There is no good rationale for treating Ramos differently from Duncan, Crawford, and Batson. Pp. 10–14.
(3) Given the Court’s numerous precedents holding that landmark and historic decisions announcing new rules of criminal procedure do not apply retroactively on federal collateral review, the Court acknowledges that the watershed exception is moribund and that no new rules of criminal procedure can satisfy the purported exception for watershed rules. Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. The watershed exception must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U. S. ___, ___ (slip op., at 11) (internal quotation marks omitted). Pp. 14–15.
Opinion
The Court’s decisions in Duncan, Crawford, and Batson were momentous and consequential. All three decisions fundamentally reshaped criminal procedure throughout the United States and significantly expanded the constitutional rights of criminal defendants. One involved the jury-trial right, one involved the original meaning of the Sixth Amendment’s Confrontation Clause, and one involved racial discrimination in jury selection. Yet the Court did not apply any of those decisions retroactively on federal collateral review. Ramos is likewise momentous and consequential. But we see no good rationale for treating Ramos differently from Duncan, Crawford, and Batson. Consistent with the Court’s long line of retroactivity precedents, we hold that the Ramos jury-unanimity rule does not apply retroactively on federal collateral review.6
Other justices focused on the fact that, since its decision in Teague, the Supreme Court has not ruled that any procedural rule should apply retroactively, including in cases that involved important rights like the right to a jury trial. There is a long line of post-Teague cases, Justice Brett Kavanaugh pointed out, in which the court has declined to apply a new rule retroactively. And prior to Teague, in DeStefano v. Woods, holding that the right to a jury trial did not apply to cases that had already become final, Kavanaugh noted, the dissenting justices compared the right to a jury trial to the right to be represented by an attorney – the same right that the court in Teague cited as the kind of rule that would apply retroactively. It seems like there would be an “asymmetry” if the right to a unanimous jury applied retroactively but the right to a jury trial did not, Kavanaugh observed.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
have argued that the Clause means more than that. One debate is whether the privileges and immunities of citizenship of the United States include the protections of the Bill of Rights—especially rights of speech, press, and religion—as applied against the States. Another concerns the Clause’s application to basic private rights, like contract and property, that were important elements of the set of rights known as “civil rights” in the nineteenth century. Those who believe that the Clause imposes some restrictions on the states regarding civil rights generally take one of two approaches. According to one view, often called substantive, the Clause mandates that citizens enjoy certain legal advantages, like the right to contract. Proponents of this interpretation often say that the states may regulate privileges and immunities but not take them away and so must regulate them reasonably. According to the other view, the Clause requires equality or non-discrimination. On this interpretation, to abridge one citizens’ private-law privilege or immunities is to limit those rights relative to those of other citizens. As long as all citizens have the same property rights, for example, it does not matter what those rights are. The central historical example of an unequal law from the framing of the Fourteenth Amendment is a Black Code, the kind of racially discriminatory restriction of the private rights of freed slaves enacted in many ex-Confederate states immediately after the Civil War.
f the equality-based reading of private-law rights is correct, the Privileges or Immunities Clause performs much of the anti-discrimination function that is largely attributed to the Equal Protection Clause in the Supreme Court’s doctrine and the accompanying account of history. Similarly, if the Privileges or Immunities Clause is in fact the true basis for applying most of the Bill of Rights provisions against state and local governments, the Clause performs much of the fundamental-rights function that is largely attributed to the Due Process Clause in Supreme Court caselaw.
Synopsis in part
(b) Louisiana's and Oregon's unconventional schemes were first confronted in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184, and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152, in a badly fractured set of opinions. A four-Justice plurality, questioning whether unanimity serves an important "function" in "contemporary society," concluded that unanimity's costs out-weighed its benefits. Apodaca, 406 U.S. at 410, 92 S.Ct. 1628. Four dissenting Justices recognized that the Sixth Amendment requires unanimity, and that the guarantee is fully applicable against the States under the Fourteenth Amendment. The remaining Justice, Justice Powell, adopted a "dual-track" incorporation approach. He agreed that the Sixth Amendment requires unanimity but believed that the Fourteenth Amendment does not render
this guarantee fully applicable against the States—even though the dual-track incorporation approach had been rejected by the Court nearly a decade earlier, see Malloy v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 12 L.Ed.2d 653. Pp. 1397 1399.
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Justice GORSUCH, joined by Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR, concluded in Parts IV-B-2 and V that Louisiana's and Oregon's reliance interests in the security of their final criminal judgments do not favor upholding Apodaca. Worries that defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral review are overstated. Cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334. Apodaca's reliance interests are not boosted by Louisiana's recent decision to bar the use of nonunanimous jury verdicts. A ruling for Louisiana would invite other States to relax their own unanimity requirements, and Louisiana continues to allow nonunanimous verdicts for crimes committed before 2019. Pp. 1406-1408.
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I agree with the Court that petitioner Evangelisto Ramos' felony conviction by a 1421*1421 nonunanimous jury was unconstitutional. I write separately because I would resolve this case based on the Court's longstanding view that the Sixth Amendment includes a protection against nonunanimous felony guilty verdicts, without undertaking a fresh analysis of the meaning of "trial... by an impartial jury." I also would make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause.
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The remaining question is whether that right is protected against the States. In my view, the Privileges or Immunities Clause provides this protection. I do not adhere to this Court's decisions applying due process incorporation, including Apodaca and—it seems—the Court's opinion in this case.
The Privileges or Immunities Clause provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Amdt. 14, § 1. At the time of the Fourteenth Amendment's ratification, "the terms `privileges' and `immunities' had an established meaning as synonyms of `rights.'" McDonald v. Chicago, 561 U.S. 742, 813, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (THOMAS, J., concurring in part and concurring in judgment). 1424*1424 "[T]he ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights" against abridgment by the States. Id., at 837, 130 S.Ct. 3020. The Sixth Amendment right to a trial by jury is certainly a constitutionally enumerated right. See Maxwell v. Dow, 176 U.S. 581, 606-608, 20 S.Ct. 448, 44 L.Ed. 597 (1900) (Harlan, J., dissenting).
The Court, however, has made the Due Process Clause serve the function that the Privileges or Immunities Clause should serve. Although the Privileges or Immunities Clause grants "United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status," the Court has interpreted the Clause "quite narrowly." McDonald, 561 U.S. at 808, 130 S.Ct. 3020 (opinion of THOMAS, J.). Perhaps to compensate for this limited view of the Privileges or Immunities Clause, it has incorporated individual rights against the States through the Due Process Clause. Id., at 809, 130 S.Ct. 3020.
Due process incorporation is a demonstrably erroneous interpretation of the Fourteenth Amendment. As I have explained before, "[t]he notion that a constitutional provision that guarantees only `process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words." Id., at 811, 130 S.Ct. 3020. The unreasonableness of this interpretation is underscored by the Court's struggle to find a "guiding principle to distinguish `fundamental' rights that warrant protection from nonfundamental rights that do not," ibid., as well as its many incorrect decisions based on this theory, see Obergefell v. Hodges, 576 U. S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857).
I "decline to apply the legal fiction" of due process incorporation. Timbs v. Indiana, 586 U. S. ___, ___, 139 S.Ct. 682, 692, 203 L.Ed.2d 11 (2019) (THOMAS, J., concurring in judgment) (internal quotation marks omitted). As a result, I part ways with the Court on both its affirmative argument about the Fourteenth Amendment and its treatment of Apodaca, in which five Justices agreed the Sixth Amendment included a right to unanimity but a different majority concluded that the right did not apply to the States. See ante, at 1397-1400.
I would accept petitioner's invitation to decide this case under the Privileges or Immunities Clause. The Court conspicuously avoids saying which clause it analyzes. See, e.g., ante, at 1394-1395, 1397. But one assumes from its silence that the Court is either following our due process incorporation precedents or believes that "nothing in this case turns on" which clause applies, Timbs, supra, at ___, 139 S.Ct., at 691 (GORSUCH, J., concurring).
I have already rejected our due process incorporation cases as demonstrably erroneous, and I fundamentally disagree with applying that theory of incorporation simply because it reaches the same result in the case before us. Close enough is for horseshoes and hand grenades, not constitutional interpretation. The textual difference between protecting "citizens" (in the Privileges or Immunities Clause) and "person[s]" (in the Due Process Clause) will surely be relevant in another case. And our judicial duty—not to mention the candor we owe to our fellow citizens—requires us to put an end to this Court's due process prestidigitation, which no one is willing to defend on the merits.
I would simply hold that, because all of the opinions in Apodaca addressed the 1425*1425 Due Process Clause, its Fourteenth Amendment ruling does not bind us because the proper question here is the scope of the Privileges or Immunities Clause. I cannot understand why the Court, having decided to abandon Apodaca, refuses to correctly root its holding in the Privileges or Immunities Clause.[1]
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[1] I also note that, under my approach to stare decisis, there is no need to decide which reliance interests are important enough to save an incorrect precedent. I doubt that this question is susceptible of principled resolution in this case, compare ante, at 1406-1408 (principal opinion), with ante, at 1409-1410 (SOTOMAYOR, J., concurring); ante, at 1418-1420 (KAVANAUGH, J., concurring); and post, at 1436-1440 (ALITO, J., dissenting), or in any other case for that matter, see, e.g., Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 457-458, 135 S.Ct. 2401, 192 L.Ed.2d 463 (2015); Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855-856, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).