After the Supreme Court hears its last oral arguments of the Term this week, it will have heard argument in 70 cases.  Compare that to the number of cases the Court used to hear.  According to one article, “From 1971 through 1988, the United States Supreme Court was hearing and deciding an average of 147 cases each Term.”   If that makes you think the current Supreme Court Justices have some time on their hands, you wouldn’t be the only one.  At his confirmation hearing in 2005, then-Judge John Roberts stated that he thought “there’s room for the court to take more cases.”  As he explained it, the Court was then hearing “about half the number of cases [it] did 25 years ago,” and it “could contribute more to the clarity and uniformity of the law by taking more cases.”

You might think then that the Court would be eager to take a case that would give it the opportunity to reconsider a fractured, internally contradictory decision from forty years ago, particularly one that is inconsistent, in both methodology and outcome, with the Court’s current cases.  But apparently you’d be wrong.  This morning, the Court denied review in Jackson v. Louisiana, a case presenting the question whether non-unanimous jury verdicts violate the Sixth Amendment of the U.S. Constitution as it applies to the states.  The last time the Supreme Court considered this question, in Apodaca v. Oregon, it held that such verdicts don’t violate the Constitution, even though no five justices could agree as to why.  (In fact, five justices concluded that the Sixth Amendment does require a unanimous verdict to convict, and eight justices concluded that the Sixth Amendment applies to criminal convictions in state courts.  For more on how that line-up resulted in non-unanimous jury verdicts being allowed in the states, see here.)

Since the Court decided Apodaca, it has repeatedly repudiated both the reasoning and the outcome of that case.  In Apodaca, the Court rejected the relevance of the Sixth Amendment’s history.  The Roberts Court, by contrast, has said we must look to history to determine the Sixth Amendment’s meaning.  And in Apodaca, the swing vote held that the Sixth Amendment does not apply to the states in the same way it applies to the federal government.  Again, the Roberts Court has soundly rejected that proposition.  Indeed, just four years ago, the Court even described Apodaca as an outlier case, resulting from “an unusual division among the Justices.”  And if all that were not enough, the Roberts Court has been even more explicit in disagreeing with Apodaca’s conclusion, noting repeatedly that ““that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors.’”  Yet because that case remains on the books, Louisiana and Oregon continue to allow defendants to be convicted and sentenced to life in prison based on non-unanimous jury verdicts.

Jackson would thus seem like an obvious case for the Court to take:  it could correct the injustice of criminal convictions that the Court has recognized are unconstitutional and restore coherence to its Sixth and Fourteenth Amendment jurisprudence all at the same time.  Yet the Court has repeatedly refused to hear a case presenting the issue.  Indeed, in the case denied today, the Court did not even bother to request that Louisiana respond to the cert. petition.  The effect of the Court’s refusal to review his case means that the petitioner, Mr. Ortiz Jackson, will remain in prison for the rest of his life, even though two jurors who heard his case were not convinced that he was guilty.  If the Court were truly hearing as many cases as it could, its failure to take this case might simply be tragic.  But given that it so easily could have taken the case, this failure is not only tragic, it’s inexplicable. 

In two months, the Supreme Court’s Term will be ending, and the justices will be leaving town for the summer.  As then-attorney John Roberts once joked, “It is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”  On their summer vacation, the justices will likely head to places like Austria and Italy and Malta, as they have in the past.  While the justices are enjoying their free time, others—like Ortiz Jackson— will be doing hard time, based on non-unanimous jury verdicts that the Court has acknowledged are unconstitutional.  Maybe someday the members of the Court will decide to correct this wrong.  They obviously have the time to do so.