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03/07/2017

Justice Thomas Makes Originalism Look Easy in Peña-Rodriguez v. Colorado
Michael Ramsey

In Peña-Rodriguez v. Colorado, decided by the Supreme Court on March 6, the question was whether the Sixth Amendment requires consideration of a juror's statements during deliberations indicating racial bias.  The majority found such a requirement.  Justice Thomas dissented in a crisp originalist opinion making essentially three points.  First:

The Sixth Amendment’s protection of the right, “[i]n all criminal prosecutions,” to a “trial, by an impartial jury,” is limited to the protections that existed at common law when the Amendment was ratified. See, e.g., Apprendi v. New Jersey, 530 U. S. 466, 500, and n. 1 (2000) (THOMAS, J., concurring); 3 J. Story, Commentaries on the Constitution of the United States §1773, pp. 652–653 (1833) (Story) (explaining that “the trial by jury in criminal cases” protected by the Constitution is the same “great privilege” that was “a part of that admirable common law” of England); cf. 5 St. G. Tucker, Blackstone’s Commentaries 349, n. 2 (1803). It is therefore “entirely proper to look to the common law” to ascertain whether the Sixth Amendment requires the result the Court today reaches. Apprendi, supra, at 500, n. 1.

Second:

The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). ...

Third:

By the time the Fourteenth Amendment was ratified, Lord Mansfield’s no-impeachment rule had become firmly entrenched in American law. See Lettow, New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth Century America, 71 Notre Dame L. Rev. 505, 536 (1996) (“[O]pponents of juror affidavits had largely won out by the middle of the century”); 8 J. Wigmore, Evidence in Trials at Common Law §2352, p. 697 (J. McNaughton rev. 1961) (Wigmore) (Lord Mansfield’s rule “came to receive in the United States an adherence almost unquestioned”); J. Proffatt, A Treatise on Trial by Jury §408, p. 467 (1877) (“It is a well established rule of law that no affidavit shall be received from a juror to impeach his verdict”). The vast majority of States adopted the no impeachment rule as a matter of common law. See, e.g., Bull v. Commonwealth, 55 Va. 613, 627–628 (1857) (“[T]he practice appears to be now generally settled, to reject the testimony of jurors when offered to impeach their verdict. The cases on the subject are too numerous to be cited”); Tucker v. Town Council of South Kingstown, 5 R. I. 558, 560 (1859) (collecting cases); State v. Coupenhaver, 39 Mo. 430 (1867) (“The law is well settled that a traverse juror cannot be a witness to prove misbehavior in the jury in regard to their verdict”); Peck v. Brewer, 48 Ill. 54, 63 (1868) (“So far back as . . . 1823, the doctrine was held that the affidavits of jurors cannot be heard to impeach their verdict”); Heffron v. Gallupe, 55 Me. 563, 566 (1868) (ruling inadmissible “depositions of . . . jurors as to what transpired in the jury room”); Withers v. Fiscus, 40 Ind. 131, 131–132 (1872) (“In the United States it seems to be settled, notwithstanding a few adjudications to the contrary . . . , that such affidavits cannot be received”).

And so in conclusion:

Perhaps good reasons exist to curtail or abandon the no impeachment rule. Some States have done so, see Appendix to majority opinion, ante, and others have not. Ultimately, that question is not for us to decide. It should be left to the political process ...  In its attempt to stimulate a “thoughtful, rational dialogue” on race relations, ante, at 21, the Court today ends the political process and imposes a uniform, national rule. The Constitution does not require such a rule. Neither should we.

It's not my area, but that sounds pretty persuasive as to the original meaning.  The majority opinion does not even attempt to refute it.  Commentators who say originalism doesn't lead to clear results need to consider this example.

Two further thoughts on this very interesting case:  (1) The majority opinion is starkly nonoriginalist, with only minimal gestures at the purposes of the Fourteenth Amendment (and with minimal reliance on precedent as well.  What does this say about the proposition that originalism "is our law"? (2) Justice Alito's separate dissent, joined by Thomas and Chief Justice Roberts, is an example of what I have called an "originalist-oriented" approach.  It does not rest only on originalism, as Justice Thomas does, but it considers originalist evidence and reaches an outcome consistent with originalism (but with extensive discussions of precedent, practice and policy included as well).