Leigh Ann Benson, (left) and Stephen A. Miller, (right) of Cozen O'Connor.

The "hung jury" is a staple of courtroom dramas. The difficulty of convincing 12 jurors to agree unanimously on the overwhelming weight of evidence—or the lack thereof—is substantial. But that unanimity in criminal juries is not required in all courtrooms in America; some state courts recognize criminal convictions when the jury is not unanimous. The U.S. Supreme Court will determine in the coming months whether the Constitution permits this practice.

In 1972, the court held in a fractured opinion—Apodaca v. Oregon—that the Sixth Amendment's right to a unanimous jury applied to federal criminal trials, but that it did not extend to the states. Four justices concluded that the Sixth Amendment required a unanimous jury. Four other justices took the position that the Sixth Amendment guaranteed a right to an impartial jury, but that it did not require a unanimous verdict. As the swing fifth vote, Justice Lewis Powell concluded that a unanimous verdict was required in federal criminal trials, but that requirement did not extend to the states. Based on that precedent, state courts have been constitutionally permitted to convict defendants with less than a unanimous jury.

In practice, though, almost all states have made the choice to require unanimous criminal verdicts. The nonunanimous jury rule is an unfortunate relic of a racially segregated America. The Louisiana Constitution was amended in the late 1800s to silence the votes of nonwhite jurors by permitting nonunanimous verdicts. Oregon adopted a comparable law in 1934. Most states have voluntarily chosen to require unanimous criminal verdicts, including Louisiana just last year; Oregon remains the only state allowing criminal convictions without juror unanimity.

Evangelisto Ramos, a man convicted of a murder by a nonunanimous jury in Louisiana, is challenging Apodaca and arguing that the Sixth Amendment guarantees the right to a unanimous jury verdict in state courts. When the crime occurred in 2014, Louisiana law permitted conviction of a criminal defendant based only on 10 jurors (out of 12). Louisiana has since repealed that law, but the repeal is not retroactive.

Ramos argues that Sixth Amendment guarantees his right to a unanimous verdict. Ramos notes that five justices (in two separate opinions) reached this same conclusion in the Apodaca decision. Ramos further argues that unanimity was common law practice for hundreds of years, and this included a long history preceding the drafting of our Constitution. When the framers crafted the Sixth Amendment, he argues that they intended to codify the common law, including its unanimity requirement, and that it should be incorporated to the states by the Fourteenth Amendment. Ramos argues that, when a Bill of Rights protection is incorporated, it should be done so entirely. The question the court should ask is whether the right is fundamentally guaranteed, not whether every potential application of a right is guaranteed. Therefore, because the Sixth Amendment's jury trial clause has been incorporated and applied to the states, Ramos contends that the more specific requirement of unanimous jury verdicts in federal criminal trials must likewise be incorporated and applied.

Louisiana counters that nothing in the Sixth Amendment requires unanimity and therefore there is nothing to be incorporated. The state's argument is also history-based. It argues that nothing in the text, structure or history of the Sixth Amendment suggests that it requires unanimous juries. Contrary to Ramos' position, Louisiana asserts that the Supreme Court has never held that the Constitution incorporated the common law wholesale, noting many aspects of common-law jury practices that were not maintained. For example, under common-law practice, only white male freeholders could serve as jurors—a practice obviously long since abandoned.

The court heard oral argument on Oct. 7. The justices expressed concerns about fairness, the role of the stare decisis doctrine and the practical impact of any opinion they issue.

Line drawing quickly emerged as a hot topic in the oral argument. Chief Justice John Roberts questioned how far of a departure from unanimity would acceptable: if 10-of-12 is constitutionally acceptable, would seven-of-12 be OK? On the other hand, Justice Ruth Bader Ginsburg asked Ramos' counsel why 10-of-12 is not enough when a jury of as few as six can unanimously convict? Counsel responded that it is the certainty that comes with unanimity that is critical, more so than the total number of jurors.

The roles of the so-called "conservative" and "liberal" justices were reversed in response to Louisiana's arguments based on fairness and practical impact. Louisiana argued that this constitutional issue does not impact many defendants and that the state has already changed its law. Moreover, the state posited that 32,000-plus convictions could be challenged if the court rules for Ramos. This argument caused Justice Neil Gorsuch to ask: "Should we forever ensconce an incorrect view … for perpetuity, for all states and all people, denying them a right … because of 32,000 criminal convictions in Louisiana?" Justice Brett Kavanagh similarly voiced concerns about fairness, noting that it seems unfair to have defendants convicted by nonunanimous juries where the nonunanimity rule is "rooted in racism."

By contrast, Sotomayor and Justice Elena Kagan seemed more sympathetic to the state's arguments. Sotomayor commented that a "parade of horribles" could result if the court rejected Louisiana's position. She expressed concern, though, with the possibility that ruling in favor of the state could jeopardize other seemingly fundamental characteristics of our jury system. Moreover, Kagan explained that a "significant degree of diversity" is tolerated in state criminal procedure; permitting a nonunanimous conviction could be just another distinction. Criminal procedure is, she explained, "loaded with anomalies" and some things are, and should be, left to the states.

While several justices mentioned stare decisis, Justice Samuel Alito raised more recent concerns. He reminded Ramos' counsel—and his colleagues on the bench—that "last term, the majority was lectured pretty sternly in a couple of dissents about the importance of stare decisis." In response, Ramos' counsel argued that stare decisis has "held less value" in the realm of incorporation than it has in other areas of the court's jurisprudence.

Alito is right—the court's decision here will be another test of its willingness to overturn precedent. This will be particularly important as other controversial issues rooted in decades' old precedent are likely to come before this group of justices. These abstract concerns about stare decisis and the impact on other people's convictions, however, surely ring hollow to Ramos, who will remain in prison for the rest of his life absent intervention by the Supreme Court.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Leigh Ann Benson also practices in the firm's commercial litigation group. She received her J.D. from Villanova University School of Law and her B.A., magna cum laude, from Virginia Tech.