It's Unanimous: Ending Racial Bias in the Jury Box

Belinda J. McCaskey | September 15, 2021 | PDF Version (266 KB) 

Summary: The question presented to the Court is whether an individual’s Sixth Amendment right to a jury trial requires states to impose an unanimity requirement on a criminal prosecution verdict. The Sixth Amendment is made applicable to the states via incorporation through the Fourteenth Amendment. Two states, Louisiana and Oregon, have long convicted people with a 10-2 verdict. The Court held in Ramos that the Sixth Amendment’s unanimity requirement applies to both state and federal criminal trials, thus ending a century-long failure to recognize racial bias in the jury box. Despite the law being rooted in racism, the Court barely acknowledges this fact, and when it does—it discounts the impact. Because the Court can and does shape our social consciousness, it must do better in taking care of its words.

Preferred Citation: Belinda J. McCaskey, It's Unanimous: Ending Racial Bias in the Jury, 61 Washburn L.J. Online 25 (2021), https://washburnlaw.edu/wljonline/mccaskey-ending-racial-bias.

I. Introduction

The State of Louisiana convicted Evangelisto Ramos of a serious crime by a 10-to-2 jury verdict.[1] On appeal, Ramos claimed the trial court erred in denying his motion to require a unanimous jury verdict.[2] He argued that a nonunanimous verdict violated his Sixth and Fourteenth Amendment rights and, therefore, was unconstitutional.[3]

The U.S. Supreme Court answered several important questions in deciding Ramos, such as what is fundamental to achieving an “impartial jury” and whether those fundamental characteristics can be imposed on the states.[4] Most importantly, the Court found nonunanimous jury laws to be unconstitutional.[5] The Court’s opinion barely mentioned the racist intent from which the nonunanimous jury laws arose,[6] but the decision to end the practice is significant. However, the Court’s choice to side-step the glaring racial animus of the existing law is a disservice to racial justice in America.

II. Background

A. State v. Ramos

In November 2014, a code enforcement officer for the City of New Orleans found the murdered body of Trinece Fedison discarded in a trash can.[7] Circumstantial and physical evidence pointed to the Petitioner, Evangelisto Ramos.[8] Subsequently, the State of Louisiana charged, tried, and convicted Ramos of second-degree murder.[9] A twelve-person jury heard the case.[10] Of the twelve jurors, ten thought the State proved Ramos’s guilt beyond a reasonable doubt; the two remaining jurors were unconvinced.[11] The conviction carried a life sentence for Ramos without the possibility of parole.[12]

On appeal, Ramos claimed the trial court erred in denying his motion to require a unanimous jury verdict.[13] He argued a nonunanimous verdict violated his Sixth and Fourteenth Amendment rights and, therefore, was unconstitutional.[14] The Louisiana Constitution provides that a criminal case “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.”[15] Additionally, the Louisiana Code of Criminal Procedure provides in part that cases “in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”[16] Relying on the U.S. Supreme Court’s decision in Apodaca v. Oregon,[17] the Louisiana Court of Appeals held that a nonunanimous verdict did not violate Ramos’s constitutional rights.[18]

The Supreme Court granted the petition for writ of certiorari.[19] The Court heard oral arguments in October 2019 and rendered a decision on April 20, 2020.[20]

B. Legal Background

To understand the significance of the Supreme Court’s decision in Ramos v. Louisiana, it is worth examining the history of the Court’s treatment of the long-standing practice of nonunanimous jury verdicts. “In all, this Court has commented on the Sixth Amendment’s unanimity requirement no fewer than 13 times over more than 120 years.”[21] The Court has long held that a jury trial is “fundamental to the American scheme of justice,” and, therefore, applicable to the states via incorporation through the Fourteenth Amendment.[22] Despite these decisions, the practice of nonunanimous jury verdicts continued in two states. It is amidst this backdrop that the Court rendered a final, fatal blow to the practice of racial bias in the jury box.

1. Sixth Amendment

The Sixth Amendment to the U.S. Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....”[23] The Amendment was intended to protect the rights of criminal defendants; however, it does not describe what an impartial jury trial requires.[24]

The text of the Constitution does not require unanimity.[25] It provides only for an impartial jury in the state and district where the crime occurred, but not necessarily a unanimous verdict.[26] History suggests this was a deliberate omission from the text. The original draft expressly guaranteed a jury trial that included a unanimous verdict, but the Senate rejected that proposal. In the end, a modified proposal without that requirement became the final wording of the Sixth Amendment.[27] The modified proposal removed any mention of unanimity and other common law features.[28]

Additionally, state constitutions that were being drafted at the time, which were frequently written by Framers of the U.S. Constitution, adopted varying approaches: at least six states expressly required unanimity, some expressly incorporated the English common law, and some merely preserved a right to a jury trial.[29] Furthermore, the Seventh Amendment does refer to common law practices explicitly.[30] This is further evidence of the deliberate compromises made when drafting the Sixth Amendment.

2. Fourteenth Amendment

The Fourteenth Amendment to the Constitution provides:

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.[31]

For the Fourteenth Amendment to incorporate a Bill of Rights protection, it must be “‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this nation’s history and tradition’”;[32] a “fundamental principle[] of liberty and justice which lie at the base of all our civil and political institutions”;[33] or be a “fundamental right, essential to a fair trial.”[34] The right must be so fundamental and essential to a fair trial, and to the due process of law, that the Fourteenth Amendment makes it obligatory to the states.[35]

In Apodaca, eight Justices agreed that the Sixth Amendment applied equally in state and federal courts, but only four Justices held that the Sixth Amendment's guarantee of a jury trial required a unanimous verdict.[36] Justice Powell agreed with the dissenters' view that the Sixth Amendment required unanimity in federal criminal trials. However, he rejected the “incorporationist” view that this requirement was equally binding on the states, and thus provided the fifth vote to allow nonunanimity in state courts.[37]

The Court has a long history of supporting the states’ right to decide what constitutes an impartial jury. As early as 1900, in Maxwell v. Dow,[38] eight of the nine Supreme Court Justices agreed that when states are deciding how to conduct jury trials, “they should have the right to decide for themselves what shall be the form and character of the procedure in such trials,...whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not.”[39] In Jordan v. Massachusetts,[40] the Court concluded that “[i]n criminal cases due process of law is not denied by a state law which dispenses with...a jury of twelve, or unanimity in the verdict.”[41] In 1968, the Court held in Duncan v. Louisiana[42] that nothing is “requir[ing] [the Court] to impose federal requirements such as unanimous verdicts or a jury of 12 upon the States.”[43] In his concurrence of Apodaca, Justice Powell said that due process does not require states to apply the federal jury trial with “all its gloss.”[44] Despite these earlier decisions, the Ramos Court did not have a problem dispensing with any stare decisis arguments when departing from these precedents.[45]

III. Court’s Decision

Ramos contended that unanimity is required because it was a common law practice at the time of the Founding and a critical component to the right of a jury trial.[46] Louisiana argued that the text of the Constitution does not provide for unanimity, that history suggests it was purposely omitted from the text, and that other common law practices are not constitutionally required in jury trials.[47] Louisiana also argued that because unanimity does not meet the standard of a fundamental right, as previously held by the Court, it therefore cannot be imposed on the states through incorporation.[48]

In deciding Ramos, the Court explored several important questions. First, the Court examined whether the Constitution’s structure and text require unanimity in jury verdicts.[49] The Court decided that although the Sixth Amendment does not explicitly address the issue, unanimity is a fundamental element of an “impartial jury” and, therefore, is required.[50] Second, the Court examined whether the Sixth Amendment was fully incorporated through the Fourteenth Amendment.[51] The Court answered swiftly, holding that the Sixth Amendment’s unanimity requirement was applicable to the states through the Fourteenth Amendment.[52] The Court reasoned that it has long held that the right to a jury trial is a fundamental right and is applied to the states via incorporation through the Fourteenth Amendment.[53] Thus, if unanimity is a requirement of the jury trial, it is therefore required by the states.[54]

Commentary

The Supreme Court’s decision to deem nonunanimous juries unconstitutional is a step forward in correcting a century-long failure of U.S. law to recognize racial bias in the criminal justice system, specifically in the jury box. However, by not adequately addressing the elephant in the room,[55] the Court missed an important opportunity to help heal a nation rife with racial discord.

Words matter—especially the words of the most powerful court in the country. The federal judiciary is the most trusted branch of the government.[56] Even though it is the most trusted, faith in the Court has significantly eroded in the past two decades.[57] The Court’s need to be apolitical, faithful arbiters of the law and maintain independence is not an excuse to minimize the significance of ending any law arising during the Jim Crow era.[58] The public is watching and listening, and the Court has a duty to do better.

The Court can inform social behavior.[59] For example, the constitutional challenges to the Voting Rights Act, and the subsequent Court decision to gut the Act, illustrate how the Court’s opinion and its words are reflected in societal behavior.

A. Case Study—The Voting Rights Act

In 1965, after numerous acts of violence in the South gained national attention, President Johnson called on Congress to pass voting rights legislation to rid the country of racial discrimination in voting.[60] The Voting Rights Act of 1965 imposed obligations on jurisdictions with a history of racial discrimination in their electoral processes.[61] The Act banned literacy tests, provided for federal oversight of election laws, and authorized the Attorney General to investigate discriminatory voting practices.[62]

Under the Voting Rights Act, Congress eliminated poll taxes and reduced discriminatory gerrymandering.[63] For the first time, Black voters had the means to challenge voting restrictions. Since the passage of the Voting Rights Act, Black voter turnout has substantially increased.[64] The Act withstood several legal challenges and the Court upheld it until 2013.[65]

In 2013, the Court gutted the Voting Rights Act when it ruled, in Shelby County v. Holder, that states with a history of racial discrimination were no longer required to seek pre-clearance before making changes to their election laws.[66] Writing for the majority, Chief Justice Roberts said, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”[67] He was wrong. Within twenty-four hours of the decision, new voter suppression laws surfaced and continue today.[68]

In Shelby County, not only did the Court’s decision allow discrimination to flourish again, but the Chief Justice said that conditions no longer warranted protection.[69] Not only were the protections necessary in 1965, but they continue to be necessary now. For example, in response to the historic turnout in the 2020 general election and the baseless and racist voter fraud allegations, thirty-three states have introduced over 165 bills to restrict voting.[70]

It does not take a clairvoyant to see how the Chief Justice’s words provided an open door, complete with a welcome mat, for state legislatures to once again introduce voting restrictions aimed at disenfranchising people of color—the very restrictions the Voting Rights Act aimed to prevent. Racial discrimination exists today, as it did in 1965, and the Court must acknowledge it, restore the protections provided by the Act, and make clear through its words that racism will not be legally tolerated.[71]

B. Consequences

Because the Court can and does shape our social consciousness, it must do better in taking care of its words. Our nation continues to struggle with race relations and likely always will. The U.S. has seen a resurgence in white nationalists as they have become emboldened by a twice-impeached former President Trump.[72] There is a clear nexus between the behavior, actions or inactions, and words of our nation’s leaders; and the behavior of our society.[73] Words matter. For example, FBI data shows a correlation between Trump’s campaign rallies and a spike in hate crimes in the counties where he won by large margins.[74] Trump’s own FBI director labeled white supremacists the “greatest domestic terrorist threat” under Trump’s administration.[75] In fact, the spike in hate crimes since Trump’s election is the second highest in twenty-five years—“second only to the spike after September 11, 2001.”[76]

Because of the awesome responsibility thrust on those in power, it is the duty of the Supreme Court to take care, not only in how it decides the outcome of a case, but also in the words the Court uses to explain its decision. Justice Alito, in his dissent in Ramos, actually calls into question whether Louisiana adopted the nonunanimity law for discriminatory purposes.[77] Further, he suggests that—even if the law had racist origins—it has “nothing” to do with its constitutionality.[78] He also admonishes the majority for even mentioning the historical racism inherent in the law.[79] Doubting the racist origins of the law is outrageous and dangerous given the mounds of evidence to the contrary.[80]

In contrast, Justice Sotomayor understands the importance and acknowledges that the history of this law is worthy of the Court’s attention.[81] In her concurrence, Justice Sotomayor recognized that Louisiana’s legislature had never fully come to terms with the law’s discriminatory purpose and effect until it “relegated [the law] to the dustbin of history” by finally repealing it.[82]

Imagine if the Court had placed race centerstage. A decision with clear and decisive language, stating an unwillingness to no longer tolerate blatantly racist laws, would have a trickle-down effect. It would empower lower courts to rule accordingly. It would put states on notice that racist laws, even those that are facially neutral but discriminatory in effect, no longer have a place. In short, it would send a message—the kind of message needed in these racially divisive times.

V. Conclusion

The discussion in the Ramos decision regarding the racial roots of Louisiana’s nonunanimity law is telling and reflective of the Nation’s current state. The majority barely provides a cursory mention of race,[83] the dissent flat out rejects that racism is an issue,[84] and only one Justice calls attention to this very real problem.[85]

The Court must act aggressively to counter bias in all laws stemming from racial animus intended to marginalize people of color. Even though this decision had a significant, positive impact, the Court could have gone further. The ruling in Ramos is

another Jim Crow law that’s been eliminated by the Supreme Court...Louisiana is known for a lot of these racist laws that are being overturned. The unanimous jury is a game-changer for minorities who serve on juries...the United States Supreme Court voting for unanimous juries...helps level the playing field.[86]

Just like the Court’s choice of language in Shelby had an immediate tangible impact on racial justice, the Court’s lack of language addressing the racist nature of the nonunanimous jury law could do the same. By simply acknowledging the history and then condemning the practice in very clear terms, the Court could help to avoid any potential fallout from this egregious omission.

 

1. State v. Ramos, 231 So. 3d 44, 46 (La. Ct. App. 2017), rev’d sub nom. Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020). [Return to Text]

2. Id. at 53. [Return to Text]

3. Id. [Return to Text]

4. Ramos v. Louisiana, 140 S. Ct. at 1397. [Return to Text]

5. Id. at 1408. [Return to Text]

6. Id. at 1394. [Return to Text]

7. State v. Ramos, 231 So. 3d at 46. [Return to Text]

8. Id. at 46–49. [Return to Text]

9. Id. at 46. [Return to Text]

10. See id. [Return to Text]

11. Id. [Return to Text]

12. Id. [Return to Text]

13. Id. at 53. [Return to Text]

14. Id. [Return to Text]

15. La. Const. art. I, § 17(A). [Return to Text]

16. La. Code Crim. Proc. Ann. art. 782(A). [Return to Text]

17. Apodaca v. Oregon, 406 U.S. 404 (1972). [Return to Text]

18. State v. Ramos, 2331 So. 3d at 54. [Return to Text]

19. Ramos v. Louisiana, 139 S. Ct. 1318, 1318 (2019). [Return to Text]

20. See generally Ramos v. Louisiana, 140 S. Ct. 1390 (2020). [Return to Text]

21. Id. at 1397.  See, e.g., Thompson v. Utah, 170 U.S. 343, 351 (1898); Patton v. United States, 281 U.S. 276, 288 (1930); Johnson v. Louisiana, 406 U.S. 356, 369 (1972). [Return to Text]

22. Ramos, 140 S. Ct. at 1397 (quoting Duncan v. Louisiana, 391 U.S. 145, 148–50 (1968)). [Return to Text]

23. U.S. Const. amend. VI. [Return to Text]

24. See id. [Return to Text]

25. See id. [Return to Text]

26. Id. [Return to Text]

27. Apodaca v. Oregon, 406 U.S. 404, 409 (1972). [Return to Text]

28. Id. [Return to Text]

29. See N.Y. Const. art. XLI (“[T]rial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate”); N.J. Const. art. XXII (“[T]he common law of England . . . shall still remain in force . . . [and] the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony.”).  Other constitutions expressly imposed an unanimity requirement.  See Del. Declaration Rts. § 14 (requiring “unanimous consent” of “an impartial jury”); Md. Const. art. XIX (“unanimous consent” of “an impartial jury”); N.C. Const. art. IX (“unanimous verdict of a jury of good and lawful men”); Pa. Const. art. IX (“unanimous consent” of “an impartial jury of the country”); Vt. Const. art. X (“unanimous consent” of “an impartial jury of the country”); Va. Const. B. Rts. § 8 (“speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty”). Other constitutions referenced neither the common law nor unanimity.  See Mass. Const. art. XII (“And the legislature shall not make any law that shall subject any person to a capital or infamous punishment . . . without trial by jury.”); Ga. Const. art. LXI (“Freedom of the press and trial by jury to remain inviolate forever.”). [Return to Text]

30. U.S. Const. amend. VII. [Return to Text]

31. U.S. Const. amend. XIV. [Return to Text]

32. Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (quoting McDonald v. Chicago, 561 U.S. 742, 767 (2010)) (holding that the Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the states through the Fourteenth Amendment’s Due Process Clause). [Return to Text]

33. Hebert v. Louisiana, 272 U.S. 312, 316 (1926). [Return to Text]

34. Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (quoting Betts v. Brady, 316 U.S. 455, 471 (1942)); See also Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer v. Texas, 380 U.S. 400, 403 (1965). [Return to Text]

35. See Gideon, 372 U.S. at 343–45. [Return to Text]

36. See Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (Stewart, J., dissenting). [Return to Text]

37. Johnson v. Louisiana, 406 U.S. 366, 369 (Powell, J., concurring). The Court issued a consolidated decision in Apodaca and Johnson v. Louisiana, which resulted in a fractured 4-1-4 opinion. Eight justices agreed that the Sixth Amendment applied to the states; four justices believed unanimity was an essential element of the impartial jury; four justices believed unanimity was not a required element of the jury trial; and Justice Powell believed the Sixth Amendment required unanimity but that it was not incorporated to the states through the Fourteenth Amendment.  Id.; see generally Apodaca, 406 U.S. 404, 413–15. [Return to Text]

38. Maxwell v. Dow, 176 U.S. 581 (1900). [Return to Text]

39. Id. at 605. [Return to Text]

40. Jordan v. Massachusetts, 225 U.S. 167 (1912). [Return to Text]

41. Id. at 176. [Return to Text]

42. Duncan v. Louisiana, 391 U.S. 145 (1968). [Return to Text]

43. Id. at 171 (Fortas, J., concurring) (holding that trial by jury is fundamental to American justice and is guaranteed in all criminal cases).  In Duncan, the Court stated the purpose of a jury trial was to prevent oppression by the government by providing a check on prosecutorial power to “safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”  Id. at 156.  This can be achieved so long as a cross-section of peers can deliberate free from intimidation.  Williams v. Florida, 399 U.S. 78, 100 (1970). [Return to Text]

44. Johnson v. Louisiana, 406 U.S. 366, 371 (Powell, J., concurring). [Return to Text]

45. Ramos v. Louisiana, 140 S. Ct. 1390, 1402–08 (2020).  In her concurring opinion, Justice Sotomayor further opined that the plurality opinion in Apodaca was an anomaly that was irreconcilable with two, well-established constitutional precedents and the Court should not shy away from correcting its mistakes.  Id. at 1409, 1410.  Justice Kavanaugh also wrote separately to explain his view on stare decisis as it relates to Ramos.  See id. at 1410–20.  Justice Kavanaugh remarked on the long list of historical cases that departed from precedent, citing cases such as Brown v. Board of Education overruling the “separate but equal” doctrine of Plessy v. Ferguson.  Id. at 1412.  Justice Alito dissented, joined by Chief Justice Roberts and Justice Kagan, disagreeing with the majority, citing enormous reliance issues with tossing aside long-established precedent.  Id. at 1425–40 (Alito, J., dissenting). [Return to Text]

46. Brief for Petitioner at 19, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No. 18-5924), 2019 WL 2451204.  See James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law 86–90 (Boston: Little, Brown, and Company, 1898). [Return to Text]

47. Brief of Respondent at 5, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No. 18-5924), 2019 WL 3942901.  See generally Williams v. Florida, 399 U.S. 78 (1970) (holding that a 12-man jury is not a necessary requirement of a trial by jury).  In Williams, the Court rejected the assumption that if a practice existed at common law in 1789, it was meant to be codified in the Constitution, citing common law practices such as “twelve good men,” only male property owners serving as jury members, and withholding food and drink from the jury until a verdict is reached.  Id. at 102–03; Brief of Respondent at 21, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No. 18-5924), 2019 WL 3942901. [Return to Text]

48. Brief for Respondent at 43, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No. 18-5924), 2019 WL 3942901. [Return to Text]

49. Ramos v. Louisiana, 140 S. Ct. 1390, 1395–97 (2020). [Return to Text]

50. Id. at 1397. [Return to Text]

51. Id. [Return to Text]

52. Id. [Return to Text]

53. Id. [Return to Text]

54. Id. [Return to Text]

55. Louisiana’s policy on allowing nonunanimous juries has racist origins dating back to the constitutional convention in 1898.  A committee chair noted that the mission of the convention was “to establish the supremacy of the white race in [Louisiana] to the extent to which it could be legally and constitutionally done.”  Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana 375 (H. Hearsey ed., 1898).  Following the Civil War, Louisiana’s economy suffered without slave labor.  Jessica Rosgaard & Wallis Watkins, The History of Louisiana's Non-Unanimous Jury Rule, New Orleans Pub. Radio (Oct. 22, 2018, 5:16 PM), https://www.wwno.org/post/history-louisianas-non-unanimous-jury-rule [https://perma.cc/ZC2A-KA64.  Using a system of convict leasing, the state rented out convicts for hard labor; thus, restoring some white power.  Id.  For this system to work, more convictions were needed.  Id.  Reducing the number of jurors required to convict ensured a steady stream of cheap labor.  Id.  When originally adopted, the law allowed nine of twelve jurors to convict. The requirement was later changed from nine to ten jurors.  Dan Copp, Locals React to Supreme Court Ruling on Split Juries, Houma Today (Apr. 25, 2020, 2:23 PM), https://www.houmatoday.com/news/20200425/locals-react-to-supreme-court-ruling-on-split-juries [https://perma.cc/Z3PG-6W4R. [Return to Text]

56. Amelia Thomson-DeVeaux, Why the Supreme Court’s Reputation Is at Stake, FiveThirtyEight (Oct. 12, 2020, 6:00 AM), https://fivethirtyeight.com/features/why-the-supreme-courts-reputation-is-at-stake/ [https://perma.cc/NNM9-RYN3. [Return to Text]

57. Id.  A 2020 poll by Gallup found that only 40% of Americans had “a great deal” or “quite a lot” of confidence in the Supreme Court.  Id.  This is down from a twenty-year high of 50%.  Id. [Return to Text]

58. Other Jim Crow era laws—such as poll taxes, literacy and property-ownership requirements, and complex voter registration forms—were all designed and enforced to disproportionately disenfranchise Black male voters.  Louisiana Disenfranchises Black Voters and Jurors, Equal Just. Initiative, https://calendar.eji.org/racial-injustice/may/12 [https://perma.cc/4QAG-8MHA] (last visited May 19, 2021). [Return to Text]

59. Or is it the other way around?  Does the prevailing public opinion shape the Court’s decisions?  See generally Peter K. Enns & Patrick C. Wohlfarth, Making Sense of the Sup. Ct. Pub. Op. Relationship, Peter Enns, https://peterenns.org/media/EnnsWohlfarthChapter_Final.pdf [https://perma.cc/EGT3-PSQG] (summarizing available theories and research in the debate over the Supreme Court’s relationship with the public’s opinion).  “In the final analysis it is simply not clear whether the Court responds to public opinion, or shapes public opinion, or whether it responds to the same sort of factors that themselves shape public opinion.”  Christopher J. Casillas, Peter K. Enns & Patrick C. Wohlfarth, How Pub. Op. Constrains the U.S. Sup. Ct., 55 Am. J. Pol. Sci. 74, 74 (2011) (quoting James Gibson, Review of Public Opinion and the Supreme Court, 54 Pub. Op. Q. 289, 290 (1990) (reviewing Thomas R. Marshall, Public Opinion and the Supreme Court (1989)). [Return to Text]

60. History of Federal Voting Rights Laws, U.S. Dep’t. Just., https://www.justice.gov/crt/history-federal-voting-rights-laws [https://perma.cc/U2LX-8K5N] (last visited May 19, 2021). [Return to Text]

61. Id. [Return to Text]

62. Id. [Return to Text]

63. Id. [Return to Text]

64. Voting Rights Act, Encyc. Britannica, https://www.britannica.com/event/Voting-Rights-Act [https://perma.cc/KPZ4-3WEU] (last visited May 19, 2021). [Return to Text]

65. See Shelby Cnty. v. Holder, 570 U.S. 529, 556–57 (2013). [Return to Text]

66. Id.  Prior to the ruling in Shelby County, states with histories of voter disenfranchisement were required to seek “preclearance” from either the Attorney General or a panel of three federal judges before changing their election laws.  Id. at 538.  Such states would receive preclearance by “proving that the change [in the election law] had neither ‘the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.’”  Id. (quoting 52 U.S.C. § 10304) (alterations in original). [Return to Text]

67. Id. at 535. [Return to Text]

68. Myrna Pérez, 7 Years of Gutting Voting Rights, Brennan Ctr. for Just. (June 25, 2020), https://www.brennancenter.org/our-work/analysis-opinion/7-years-gutting-voting-rights [https://perma.cc/4KKW-G5P4.  “You're seeing a national effort by the Republican Party to try to restrict voting rights, and it's playing out in states all across the country.”  Terry Gross, Republican Voter Suppression Efforts Are Targeting Minorities, Journalist Says, NPR (Oct. 23, 2018, 2:04 PM), https://www.npr.org/2018/10/23/659784277/republican-voter-suppression-efforts-are-targeting-minorities-journalist-says [https://perma.cc/TN9J-FUCR] (referring to the Republican strategy enabled by the Shelby decision).  Examples of voter suppression measures taken since the Shelby decision include Texas photo-ID laws, Georgia closing polling places, “exact-match” system of purging voters, and gerrymandering.  Id. [Return to Text]

69. Shelby Cnty., 570 U.S. at 535.  See also Voting Laws Roundup: Feb. 2021, Brennan Ctr. for Just. (Feb. 8, 2021), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-february-2021 [https://perma.cc/866E-7QA3] (summarizing restrictive voting laws that are in effect today). [Return to Text]

70. Voting Law Roundup: Feb. 2021, supra note 69. [Return to Text]

71. “It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that's pretty important . . . .”  Dr. Martin Luther King, Jr., Speech at Western Michigan University (Dec. 18, 1963) (transcript available in the Western Michigan University Library), https://libguides.wmich.edu/mlkatwmu/speech [https://perma.cc/6MAU-U23N. [Return to Text]

72. During a presidential debate leading up to the November 2020 election, now twice-impeached President Trump told the Proud Boys, a known white nationalist group, to “stand back and stand by.”  Amy Sherman, Fact-Check: Did the FBI Director Warn About White Supremacist Violence?, Austin American-Statesman (Oct. 9, 2020, 1:24 PM), https://www.statesman.com/story/news/politics/elections/2020/10/09/fact-check-did-fbi-director-warn-about-white-supremacist-violence/114251512/ [https://perma.cc/GT3L-NWDH. [Return to Text]

73. Vanessa Williamson & Isabella Gelfand, Trump and Racism, What Do the Data Say? Brookings (Aug. 14, 2019), https://www.brookings.edu/blog/fixgov/2019/08/14/trump-and-racism-what-do-the-data-say/ [https://perma.cc/PM9U-EKU5. [Return to Text]

74. Id.  The Anti-Defamation League collected data showing hate crimes more than doubled in counties where Trump held rallies compared to similar counties where he did not.  Id. [Return to Text]

75. Sherman, supra note 72. [Return to Text]

76. Williamson & Gelfand, supra note 73. [Return to Text]

77. Ramos v. Louisiana, 140 S. Ct. 1390, 1426 (2020) (Alito, J., dissenting). [Return to Text]

78. Id. [Return to Text]

79. Id. at 1425. “To add insult to injury, the Court tars Louisiana . . . with the charge of racism for permitting nonunanimous verdicts.”  Id. [Return to Text]

80. See supra note 55 and accompanying text. [Return to Text]

81. Id. at 1410 (Sotomayor, J., concurring). [Return to Text]

82. Id. [Return to Text]

83. See id. at 1394. [Return to Text]

84. See id. at 1426 (Alito, J., dissenting). [Return to Text]

85. See id. at 1410 (Sotomayor, J., concurring). [Return to Text]

86. Copp, supra note 55. [Return to Text]