The holding in this case has no relevance to Wisconsin practitioners, or indeed anyone outside of Louisiana or Oregon–the only two jurisdictions permitting 10-2 guilty verdicts in criminal trials. The Sixth Amendment requires unanimity in federal trials, and our state supreme court has long held the Wisconsin Constitution confers the same right. See Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979). So if you’re interested only in the impact on your practice, there is none, and you can stop reading now.
If you have a more scholarly interest in the merits of a constitutional question of criminal procedure, you can also quit right here. The Justices don’t really have a lot to say about the question presented: whether the Sixth Amendment’s unanimity requirement should be incorporated against the states. All agree, or at least none expressly disagree, that it should be.
And yet here we have a five-opinion, 87-page novella of a decision, including unsubtle rancor (presented as an appeal to civility) and charges and countercharges of “overblown” and “overstated” rhetoric. There are two real disputes, neither having much of anything to do with the Sixth Amendment.
One is about the attention judges should pay to legislators’ racist aims in assessing the constitutionality of their enactments. Louisiana and Oregon’s provisions permitting non-unanimous verdicts were enacted expressly to diminish or eliminate the power of black jurors, though both were later re-enacted without such open discriminatory intent. To the three-Justice plurality (Gorsuch, joined by Breyer and Ginsburg), and to both concurrences (Sotomayor and Kavanaugh), this history matters. To the three-justice dissent (Alito, joined by Chief Justice Roberts and Justice Kagan), it’s irrelevant. (Justice Thomas also concurs, continuing his lonely quest to house Constitutional protections against the states within Fourteenth Amendment’s privileges and immunities clause, rather than its due process clause).
The other big issue–and the one that’s drawn attention from the world beyond criminal-law nerds–is the nature of stare decisis. The implications for future hot-button cases are beyond the scope of this blog, though you can read about them in many other places. The concrete dispute in this case is about whether the Court ought to follow Apodaca v. Oregon, 406 U.S. 404, (1972), in which it rejected a very similar argument that the Constitution requires unanimous state juries. The plurality tries to duck the question of adhering to precedent altogether: it says that there is no binding holding in Apodaca, because the theory of the deciding justice–that though the Sixth Amendment requires unanimity in federal trials, it applies less stringently to the states–is contrary to the bulk of Court precedent regarding Fourteenth-Amendment incorporation.
Nobody else–concurrences or dissent–buys that theory. The remaining Justices (again excluding Thomas) argue passionately and at length about how much deference to give what they all accept to be the holding of Apodaca. The tea leaves are, again, not for On Point to read, but it is tough to see the argument as anything more than jockeying for position in a future case, given how little interest the Justices show in the merits of this one.