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Justice Sam Alito just delivered a dissent that could be described as blistering if it wasn’t so cringe-worthy. For six paragraphs, Alito rails against the majority opinion, written by Justice Gorsuch, as a breach of “rational and civil discourse” because it includes a recounting of the history of the laws at issue in the case. But that history requires delving into Ku Klux Klan influence and a public record of racist motivations for the specific laws, and if there’s one thing Justice Alito hates, it’s using ouchy words like “racism” to describe… well, racism.
In 12 Angry Men, Henry Fonda’s Juror #8 engages in a 90-minute struggle against apathy and animus to prevent a miscarriage of justice — the hasty death penalty conviction of an innocent man. It’s such an iconic ode to constitutional order that every jury orientation film for 60 years has thrown a clip in there to get you ready to run through a wall before spending two weeks listening to testimony about the trade dress of competing rubber gaskets manufacturers.
But in Louisiana and Oregon, 12 Angry Men would have ended with a conviction in about 10 minutes. For years, the two states allowed criminal convictions on the basis of non-unanimous verdicts, a justice system curiosity developed to prevent the occasional black or immigrant juror from interfering with the government’s interest in throwing the book at minority defendants. States that outright refused to seat minority jurors would run afoul of the Constitution, but if those jurors could be seated but ignored… well, the Supreme Court just threw up its hands at a solution so clever!
In any event, the Supreme Court just closed this loophole permanently, holding that the Sixth Amendment by incorporation requires states to convict people unanimously. Justice Gorsuch wrote a fractured opinion that won’t necessarily satisfy scholars but gets the result right.
Justice Sam Alito isn’t pleased to be closing the door on the right of states to perform end-runs around the Constitution. He opens, as previewed at oral argument, with an unironic admonishment of the majority for overturning a precedent from the 1970s. Apparently, precedents that make a mockery of Sixth Amendment rights are sacrosanct while those that impinge on no rights other than a janky First Amendment claim concocted from whole cloth must be overturned with abandon. But it’s his next section aimed directly at Justice Gorsuch where Justice Alito decides to get his inner Justice Taney on.
Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend. At the start of its opinion, the majority asks this rhetorical question: “Why do Louisiana and Oregon allow nonunanimous convictions?” And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise African Americans.
Now, it’s not clear why Justice Gorsuch suggested that a legacy of racism motivated these laws, but it’s probably because this is entirely and indisputably accurate. Louisiana is, of course, one of those deep South states with a well-known history of institutionalized racial prejudice — at least until Chief Justice Roberts declared racism cured in Shelby County — and the history of this law is no exception with lawmakers going on record to call it critical for “the supremacy of the white race.” Oregon’s a little harder to envision as a state steeped in racist policymaking until you learn that it was founded as a white supremacist haven and actually had a law banning black people until 1926. So, it’s not all craft brews and shrooms over there. With its jury provision, lawmakers called out immigrants as the reason white people needed to be able to convict people without unanimous consent. It’s all around a disturbing legacy.
But Justice Alito isn’t interested in your historical refresher course because he finds all of these “facts” to further the disturbing rise of “ad hominem rhetoric” in this country. And by “ad hominem rhetoric” he means “talking about racism” which is a “doth protests too much” for the ages.
Ad hominem is a consistently misapplied concept that most folks reduce to “they made fun of me so they’re wrong,” when in reality it’s where someone “attacks the person and not the argument.” It’s a logical fallacy to say, “the Louisiana legislature are a bunch of dumb racists so this law is unconstitutional” while it’s not a fallacy to say, “here are a bunch of instances where the Louisiana legislature expressed racist motivations when they passed this law.” What it most assuredly not is any argument that questions the “motives of the argument’s proponents,” in particular in a field where the motives of proponents can dictate the legal outcome.
Justice Alito’s half-hearted attempt to justify the Gorsuch opinion as ad hominem rests on claiming that the history of the specific laws is irrelevant because the majority concludes that the Sixth Amendment would prevent any future nonunanimous jury law so providing that history is just poisoning the well.
The more important point, however, is that today’s decision is not limited to anything particular about Louisiana or Oregon. The Court holds that the Sixth Amendment requires jury unanimity in all state criminal trials. If at some future time another State wanted to allow non-unanimous verdicts, today’s decision would rule that out—even if all that State’s lawmakers were angels.
This makes no sense because, in theory, states can interfere with constitutional rights, like the one the majority sees in the Sixth Amendment, by positing a compelling government interest. The majority doesn’t envision such an interest arising but hypothetically it could. That’s why the history of the laws are relevant here. Saying that this right applies to the states and the states here have the opposite of a compelling interest in interfering with it, far from ad hominem, flows entirely logically.
Then the opinion just devolves into silliness:
Some years ago the British Parliament enacted a law allowing non-unanimous verdicts. Was Parliament under the sway of the Klan?
The famously tolerant Brexiteers? Alito probably knows this is a dog of an argument which is why the sleight of hand in asking if Parliament was under the sway of a famously American entity. Was the motivation for Britain’s law pretextual? Maybe. Even if it wasn’t, would it be sufficiently compelling in the United States? Probably not. In any event, this is specious.
The Constitution of Puerto Rico permits non-unanimous verdicts. Were the framers of that Constitution racists?
Puerto Rico has a long history of racial animus toward black Puerto Ricans so… probably?
Non-unanimous verdicts were once advocated by the American Law Institute and the American Bar Association. Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position? Racists all?
See how this is all pretzeling back in on itself? “All these other people posit ostensibly benign reasons for non-unanimous juries so… why should we ever talk about reasons?” Because if one thinks there could be any benign reason that’s why it’s critical to interrogate the justifications of these laws.
We should set an example of rational and civil discourse instead of contributing to the worst current trends.
One is reminded of Homer Simpson’s complaint about therapy: “It breaks up families… turns wives against husbands, children against fathers, neighbors against me.” This “current trend” of acknowledging racial inequality puts a real drag on Alito’s feelings. And apparently calling out Klan members from the late 1800s is something that he sees as an attack today which is… curious.
Make no mistake, Justice Alito’s ill-advised outburst is all about his (along with Chief Justice Roberts, who joined the dissent) desire to purge jurisprudence of a vocabulary to discuss racial animus. It’s why their ideological brethren refuse to admit that segregation was unconstitutional — they balk at the idea that racism can even be a subject in legal discourse. If the committee chair who passed this law saying that it was done to “establish the supremacy of the white race,” — one of the quotes Justice Gorsuch cites that so egregiously rankles Alito — cannot be raised in an opinion, then really what’s left?
This, for Alito, is not “rational or civil discourse” because it offends him. Everyone should really wonder why he’s so offended by calling Jim Crow racist.
Earlier: Oregon Is Now The Only Remaining State With Old Jim Crow Jury System
Justice Alito’s Got Jokes About Overturning Legal Precedents
Supreme Court Ends Terrible Scourge Of Teachers Earning Living Wages
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.