(Photo by Alex Wong/Getty Images)
In case you had any doubt about how a sharply divided Supreme Court will play out over the next several years, Justice Samuel Alito is here to make sure you know petty barbs are now par for the course.
On Monday, the Court heard arguments in Ramos v. Louisiana. In a unique twist, both sides in the case are asking the justices to overturn the 1972 case Apodaca v. Oregon. Evangelisto Ramos, a man convicted of murder on a 10 of 12 jury vote, is asking the justices to formally incorporate the Sixth Amendment’s unanimous jury conviction requirement to the states. The state of Louisiana is also asking for Apodaca to be overturned, but they prefer the Court find there is no right to conviction by unanimous jury under the Sixth Amendment. And Justice Elena Kagan seemed perturbed at Louisiana’s position, as reported by Law360:
“You have this stare decisis, except you’re giving it away,” she said. “And I don’t know what to make of that because I would think what you would do is to say something like: This is an outlier in our incorporation doctrine. There’s no question that it is. But it has been an on outlier for 50 years. It has been completely administrable. It has been completely clear.”
Despite Justice Kagan’s grilling of the respondent over the abandonment of stare decisis, Justice Alito made sure to get in a dig at the expense of the liberal justices who have been disturbed over the majority’s ease in shedding precedent in other cases:
[Alito] lightly chided his liberal colleagues…. pointing out that “last term, the majority was lectured pretty sternly in a couple of dissents about the importance of stare decisis,” the Latin term for respecting precedent.
If there was any doubt to whom he was referring, Justice Alito said he was “thinking about the dissent in Franchise Tax Board and the dissent in Knick versus Township of Scott.”
In those two cases, Justices Stephen Breyer and Elena Kagan blasted the conservatives for overturning a pair of precedents governing state sovereign immunity and the Fifth Amendment’s takings clause. Their dissents also warned about “which cases the court will overrule next.”
I guess precedent matters to Alito when it means a convict might get out of jail. Or perhaps he just wants to get it out there early and often that breaking the eggs of precedent is part of making a Supreme Court omelet before the Court overturns Roe. Regardless, it seems obvious that, at least for the near future, snipping will simply be a feature of the Supreme Court.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).