Brett Kavanaugh
Supreme Court Justice Brett Kavanaugh stands before a ceremonial swearing-in in the East Room of the White House in Washington on October 8, 2018. (AP Photo/Susan Walsh)

Last month, the Supreme Court didn’t just rule against thousands of prisoners convicted under jury rules that permit non-unanimous verdicts. Six conservative justices also cast doubt on the court’s willingness to ever grant retroactive relief to victims of a range of unconstitutional practices and policies. It’s little wonder that Justice Elena Kagan wrote such a potent dissent for the court’s diminished liberal wing.

She knows the scope of what the court did in Edwards v. Vannoy, the deplorable restrictions it just placed on systemic justice reform, and the sneaky way in which it did it. “The majority follows none of the usual rules of stare decisis,” Justice Kagan wrote. “It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.”

To understand what happened in Edwards, go back more than a year to Ramos v. Louisiana. Last spring, the court ruled 6-3 that non-unanimous jury rules, in place then only in Oregon and Louisiana, violated the Sixth Amendment rights of defendants to a trial by jury. The idea behind the old rules, explicitly created to help enforce white supremacy, were simple and diabolical. By allowing convictions with 10-2 verdicts, state lawmakers in Louisiana could still get the convictions they wanted against Black people (or in the case of Oregon, Jews and other minorities), even if one or two jurors were Black or Jewish, simply unconvinced of the prosecution’s case, or empathetic with a criminal defendant.

Last April, Justices Neil Gorsuch and Brett Kavanaugh joined with their four liberal colleagues (Justice Ruth Bader Ginsburg was then still alive) to end that odious practice of allowing convictions from non-unanimous juries. It was good news for Evangelisto Ramos, the named plaintiff in the case, who was convicted and sentenced to life without parole in Louisiana even though two of his trial jurors voted to acquit him. In 48 states, the justices noted, Ramos would not have been convicted. The state’s law was not only unconstitutional, but it seemed to demand redress. Justice Gorsuch ended his majority opinion in Ramos last April with these words:

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment… In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others.

Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.

And yet this is precisely what Justices Gorsuch and Kavanaugh did in Edwards. They ruled that prisoners like Ramos could not rely on the new jury rule to try to reverse the injustice done by the old non-unanimous rule. They just perpetuated something they knew to be wrong because they feared the consequences of being right. What are the consequences? Allowing thousands of people unfairly convicted by non-unanimous verdicts to seek new trials or other relief. And how did Kavanaugh and company avoid those consequences? They did so by claiming, without merit, that prohibiting those racist jury rules was such a big deal after all. It’s a head-spinning reversal of the court’s own precedent.

Had the court’s conservatives stopped there, it would have been bad enough. But the justices went further. Under old precedent, the question of “retroactivity” in these sorts of cases was tied to the concept of a fundamental, or “watershed,” change in the law. If the court changed a legal standard profoundly enough, it would apply the change retroactively. On the other hand, if the court changed a legal standard only incrementally, the court would apply the change prospectively only. Future litigants would benefit from the new rule. Past litigants would not.

Knowing they couldn’t rationally argue that Ramos wasn’t a “watershed” new rule—nothing minor about undermining thousands of old convictions and sentences—the court’s conservatives instead overturned the legal standard by which all “watershed” procedural rules have been judged for decades. Justice Kavanaugh declared the old precedent “moribund” and “retaining no vitality.” Poof! It was gone. And with it (by Justice Kagan’s own count) the foundation of at least 17 other Supreme Court decisions that have helped individuals wronged by justice systems over the generations.

One thousand or more people imprisoned under the old jury rule in Oregon alone (by Justice Samuel Alito’s count) might have been able to get new trials. Add to that the number of cases in Louisiana—and then add to that the countless other men and women languishing in prison who now will not be able to challenge old convictions or sentences based on new interpretations of the unconstitutional laws and standards that put them away in the first place.

Many of us who spoke or wrote about the Ramos ruling last spring considered it both a marker for future reform and assumed that the justices would revisit the issue quickly to help thousands of prisoners who were unjustly convicted under odious non-unanimous rule. After all, hadn’t the court just done something similar with juvenile life-without-parole sentences when it first struck down mandatory life-without-parole sentences for teenagers and then allowed those sentenced to seek new sentences?

It’s obvious that Justice Kagan shared that optimism—which likely explains the disappointment, even scorn, she expressed for the rationale cited by the majority in defense of the Edwards opinion. Her dissent in Edwards v. Vannoy is worth reading not just for what it says about what the court’s conservatives just did, but to understand what they plan to do. This is surely the beginning and not the end of clawbacks of justice reform, Justice Kagan wrote, and it portends more misery for forsaken people sitting in a cell because of a law or policy that has since been voided.

Ramos will not apply retroactively,” wrote Justice Kagan, “meaning that a prisoner whose appeals ran out before the decision can receive no aid from the change in law it made. So Thedrick Edwards, unlike Evangelisto Ramos, will serve the rest of his life in prison in Louisiana based on a 10-to-2 jury verdict. Only the reasoning of the holding resists explanation.” How? Justice Kagan explained in Edwards: “If there can never be any watershed rules—as the majority here asserts out of the blue—then, yes, jury unanimity cannot be one. The result follows trippingly from the premise. But adopting the premise requires departing from judicial practice and principle.”

Kagan added: “For the first time in many decades those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts.” What she means is that the court’s conservatives created yet another appalling scenario where judges recognize a constitutional right—no one may be convicted of a serious crime by a non-unanimous jury—without giving the unjustly convicted a remedy to vindicate that right. It’s a stunt that portends ill for all sorts of people seeking help from the most reactionary Supreme Court in a century.

Andrew Cohen

Follow Andrew on Twitter @JustADCohen. Andrew Cohen, a longtime network legal analyst, is a fellow at the Brennan Center for Justice and a senior editor at The Marshall Project.