merit that derision. Justice Powell’s belief that the Consti-tution allows the States a degree of flexibility in the inter-pretation of certain constitutional rights, although not ourdominant approach in recent years,

Williams, 399 U. S. 78, which had held just two years earlier that the Sixth Amendment did not constitutionalize the common law’s requirement that a jury have 12 members.

enormous reliance interests of Louisiana and Oregon. For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have conducted thousands and thousands of trialsunder rules allowing non-unanimous verdicts.

In reaching this conclusion, I do not disregard the interestsof petitioner and others who were convicted by a less-than-unanimous vote.

The majority cannot have it both ways. As long as retro-active application on collateral review remains a real possi-bility, the crushing burden that this would entail cannot beignored.

10 (2010), where we overruled precedent allowing lawsthat prohibited corporations’ election-related speech, we found that “[n]o serious reliance interests” were implicated, id., at 365, since the only reliance asserted by the dissent was the time and effort put in by federal and state lawmak-ers in adopting the provisions at issue, id., at 411–412 (Stevens, J., concurring in part and dissenting in part).

In-stead, after a vote of 11 to 1 or 10 to 2, it is likely that de-liberations would have continued and unanimity wouldhave been achieved.

Whatever the ultimate resolution of the retroactivityquestion, the reliance here is not only massive; it is con-crete.

we carefully consid-ered and addressed the question of reliance, and whateverone may think about the extent of the legitimate reliance inthat case, it is not in the same league as that present here. Abood had held that a public sector employer may requirenon-union members to pay a portion of the dues collected from union members.

Under the approach to stare decisis that we have taken in recent years, Apodaca should not be overruled. I would therefore affirm the judgment below, and I respectfullydissent.

In Hurtado v. California, 110 U. S. 516, 538 (1884), the Court held that the Grand Jury Clause does not bind the States and that they may substitute preliminary hearings at which the decision to allow a prosecution to go forward is made by a judge ratherthan a defendant’s peers.

Second, it is similarly unfair to criticize Justice White for not discussing the prior decisions that commented on jury unanimity.

White’s analysis or his bottom line in Apodaca if I had sat on the Court at that time, but the majority’s harsh criticismof his opinion is unwarranted.

Did it constitutionalize the require-ment that there be 12 jurors even though nobody can say why 12 is the magic number?

Third, the failure of Justice White (and Justice Powell) to take into account the supposedly racist origins of the Loui-siana and Oregon laws should not be counted as a defect for the reasons already discussed.

For all these reasons, Apodaca clearly was a precedent,and if the Court wishes to be done with it, it must explainwhy overruling Apodaca is consistent with the doctrine of stare decisis.

past decisions must be overturned, but webegin with the presumption that we will follow precedent, and therefore when the Court decides to overrule, it has an obligation to provide an explanation for its decision.This is imperative because the Court should have a body of neutral principles on the question of overruling prece-dent. The doctrine should not be transformed into a tool that favors particular outcomes.1

inexo-rable command.”

No, it cannot. The idea that Apodaca was a phantomprecedent defies belief.

Under Marks, the clear answer to this question is yes. The logic of Marks

Oregon, the only State that still permits non-unanimous verdicts? Oregon certainly did not make such a concession. On the contrary, it submitted an amicus brief arguing strenuously that Apodaca is a precedent and that it should be retained. Brief for State of Oregon as Amicus Curiae 6–32. And what about any other State that might want to allow such verdicts in the future? So the majority’s reliance on Louisiana’s purported concession simply will not do.

JUSTICE ALITO, with whom THE CHIEF JUSTICE joins, and with whom JUSTICE KAGAN joins as to all but Part III–D, dissenting.

If the Apodaca Court had summarily affirmed astate-court decision holding that a jury vote of 10 to 2 did not violate the Sixth Amendment, that summary disposi-tion would be a precedent. Accordingly, it is impossible to

Privileges or Immunities Clause.

Ky. Const., Art. XII, §6 (1792); N. J. Const., Art. XXII (1776); N. Y. Const.,Art. XLI (1777); S. C. Const., Art. IX, §6 (1790). Some States did not explicitly refer to either the common law or unanimity. See, e.g., Ga. Const., Art. LXI (1777);

Accordingly, I concur only in the judgment.

Due process incorporation is a demonstrably erroneous interpretation of the Fourteenth Amendment. As I have ex-plained before, “[t]he notion that a constitutional provisionthat guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of thoserights strains credulity for even the most casual user of words.” Id., at 811. The unreasonableness of this interpre-tation is underscored by the Court’s struggle to find a “guid-ing principle to distinguish ‘fundamental’ rights that war-rant protection from nonfundamental rights that do not,” ibid., as well as its many incorrect decisions based on this theory

he Privileges or Immunities Clause provides that “[n]oState shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Amdt. 14, §1. At the time of the Fourteenth Amendment’s ratification, “the terms ‘privileges’ and ‘immunities’ had anestablished meaning as synonyms of ‘rights.’ ” McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). “[T]he ratifying publicunderstood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against abridgment by the States. Id., at 837. The Sixth Amendment right to a trial by jury is certainly a constitutionally enumerated right. See Maxwell v. Dow, 176 U. S. 581, 606–608 (1900) (Harlan, J., dissenting).The Court, however, has made the Due Process Clause serve the function that the Privileges or Immunities Clause should serve. Although the Privileges or Immunities Clause grants “United States citizens a certain collection of

So assuming that the Court faithfully applies Teague, today’s decision will not apply retroactively on federal habeas corpus review and will not disturb convictions thatare final.

“trial . . . by . . . jury”

I write separately because I would resolve this case based on the Court’s longstanding view that the SixthAmendment includes a protection against nonunanimous felony guilty verdicts, without undertaking a fresh analysis of the meaning of “trial . . . by an impartial jury.”

procedural, not substantive: I

Apodaca warrants the same fate as Swain.

thor-oughly racist in its origins and has continuing racially discriminatory effects?

Why the change? The State wanted to diminish the influ-ence of black jurors, who had won the right to serve on ju-ries through the Fourteenth Amendment in 1868 and theCivil Rights Act of 1875.

Taken together, those three considerations set a high (but not insurmountable) bar for overruling a precedent, andthey therefore limit the number of overrulings and main-tain stability in the law.4

When Apodaca was decided, it was already an outlier in the Court’s jurisprudence, and over time it has become even more of an outlier.

when to overrule an erroneous constitutional precedent, as the Court does in this case.

The stare decisis factors identified by the Court in its past cases include:  the quality of the precedent’s reasoning;  the precedent’s consistency and coherence with pre-vious or subsequent decisions;  changed law since the prior decision;  changed facts since the prior decision;  the workability of the precedent;  the reliance interests of those who have relied on the precedent; and  the age of the precedent.

just wrong, but grievously or egregiously wrong?

unduly upsetreliance interests?

provided correction can be had by legislation.

significant negativejurisprudential or real-world consequences?

In short, the first consideration requires inquiry into how wrong the precedent is as a matter of law. The second and third considerations together demand, in Justice Jackson’swords, a “sober appraisal of the disadvantages of the inno-vation as well as those of the questioned case, a weighing of practical effects of one against the other.”

In statutory cases, stare decisis is comparatively strict, as history shows and the Court has often stated.

particular, to overrule a constitutional precedent, theCourt requires something “over and above the belief that the precedent was wrongly decided.

Brown v. Board of Education, which repudiated the separate but equal doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896). As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.” E.g., ante, at 20.

he doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes ap-propriate for the Court to overrule erroneous decisions.

stare decisis is not as strict “when we interpret the Constitution because our interpretation can be altered onlyby constitutional amendment or by overruling our prior de-cisions.”

I write separately to explain my view of how stare decisis

Citizens United v. Federal Election Comm’n,

doctrine “permits society to presumethat bedrock principles are founded in the law rather thanin the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government,both in appearance and in fact.”

I write separately, how-ever, to underscore three points.

not

erroneous interpreta-tion of the jury-trial right, the Court should not hesitate toreconsider its precedents.

Herecognized that his argument on that score came “late inthe day.” Johnson v. Louisiana, 406 U. S. 356, 375 (1972) (concurring opinion)

about the best mode of constitutional interpreta-tion.

But where is the justice in that? Every judge must learn to live with the fact he or she willmake some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we allknow to be wrong only because we fear the consequences of being right.

stare decisis “has been a fundamental part of our jurispru-dence since the founding.

reliance interests States have in the finality of their criminal judgments.

dissent must elide the reliance the American people place in their constitutionally protected liberties,

ecurity of their final criminal judgments

we all share in the preservation of our constitutionally promised liberties. Indeed, the dissent can cite no case in which the one-time need to retry defendants has ever been sufficient to inter a constitutional right forever.

Booker v. United States held that the Federal Sentencing Guidelines must be advi-sory rather than mandatory, this Court vacated and re-manded nearly 800 decisions to the courts of appeals. Sim-ilar consequences likely followed when Crawford v. Washington

relax their own unanimity require-

It would be quite surprising if they had, given that nonunanimous verdicts are insufficient to con-vict in 48 States and federal court.

Imagine this question splitsthe Court, with four Justices finding the Fourth Amend-ment requires a warrant and four Justices finding no such

issent’s account of Apo-daca’s result looks suspiciously like the reasoning of Justice Powell’s opinion:

Apodaca yielded no controlling opinion at all

There are two independent reasons why that answer falls short.

Jus-tice writing only for himself

t the time of the Amendment’s adoption, the right to a jurytrial meant a trial in which the jury renders a unanimousverdict.

humility, we must

At the same time, we have continued to recognize the historical need for unanimity.35 We’ve been studiously ambiguous, even inconsistent

We are entrusted to preserve and protect that lib-erty, not balance it away aided by no more than social

who can say whetherany particular hung jury is a waste, rather than an example of a jury doing exactly what the plurality said it should—deliberating carefully and safeguarding against overzeal-ous prosecutions

ittle contemporaneous evidenceshedding light on why the Senate acted as it did.

including Justice Powell—recognized that the Sixth Amendment demands unanimity,

House of Representatives approvedthis text with minor modifications.

Louisiana acknowledges the problem. The State expressly tells us itis not “asking the Court to accord Justice Powell’s solo opin-ion in Apodaca precedential force.”37 Instead, in an effort to win today’s case, Louisiana embraces the idea that every-thing is up for grabs.

offered up the essential fifth vote to uphold Mr. Apodaca’s convic-tion—if based only on a view of the Fourteenth Amendmentthat he knew was (and remains) foreclosed by precede

This Court has long explained that the Sixth Amendment right to a jury trial is “fundamentalto the American scheme of justice” and incorporated against the States under the Fourteenth Amendment.

dual-track” incorporation—the idea that a single right canmean two different things depending on whether it is being invoked against the federal or a state government.

race was a mo-tivating factor in the adoption of their States’ respectivenonunanimity rules

Influential, postadoption treatises confirm this under-standing. For example, in 1824, Nathan Dane reported as fact that the U. S. Constitution required unanimity in crim-inal jury trials for serious offenses.16 A few years later, Jus-tice Story explained in his Commentaries on the Constitu-tion that “in common cases, the law not only presumesevery man innocent, until he is proved guilty; but unanim-ity in the verdict of the jury is indispensable.”17 Similar statements can be found in American legal treatises throughout the 19th century.18 Nor is this a case where the original public meaning waslost to time and only recently recovered. This Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a “constitutional right to demand that his liberty should not be taken from himexcept by the joint action of the court and the unanimousverdict of a jury of twelve persons.”19 A few decades later, the Court elaborated that the Sixth Amendment affords a right to “a trial by jury as understood and applied at com-mon law, . . . includ[ing] all the essential elements as they were recognized in this country and England when the Con-stitution was adopted.”20 And, the Court observed, this

carried with it some meaning about the content and requirements of a jury trial.

facially race-neutral” rule

elevant precedent, and, at last, the conse-quences

Parts I, II–A, III, and IV–B–1, inwhich GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined

what matters.

im Crow era:

Really?”

Worries th

British Parliament enacted a law

Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not byproving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regret-tably succumbs to this trend. At the start of its opinion, themajority asks this rhetorical question: “Why do Louisianaand Oregon allow nonunanimous convictions?” Ante, at 1. And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Ante, at 1–2. 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.

USTICE GORSUCH, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts IV–B–2 and V that Loui-siana’s and Oregon’s reliance interests in the security of their finalcriminal judgments do not favor upholding Apodaca.

JUSTICE THOMA

gravely mistaken. And Apodaca sits uneasily with 120 years of preceding case law.

JUSTICE GORSUCH, joined by JUSTICE GINSBURG and JUSTICE BREYER

Teague v. Lane, 489 U. S. 288. Apodaca’s reliance interests are not boosted by Louisiana’s recent decision to bar the use of non-unanimous jury verdicts.

four-Justice plu-rality, questioning whether unanimity serves an important “function” in “contemporary society,” concluded that unanimity’s costs out-weighed its benefits. Apodaca, 406 U. S., at 410.

Argued October 7, 2019—Decided April 20, 2020

The Constitution’s text and structure clearly indicate that the Sixth Amendment term “trial by an impartial jury” carries with it

Argued October 7, 2019—Decided April 20, 2020

The dangers of that approach, however, can be seen in Apodaca, where the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment. Pp. 11–15

Louisiana and Oregon, have longpunished people based on 10-to-2 verdicts.