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Oregon and Louisiana are the only two states in the country where a criminal conviction can be obtained from a non-unanimous jury. In Herrera v. Oregon, the Supreme Court had already denied cert on a challenge to that practice in Oregon, post McDonald v. Chicago.

Now, the Court has denied the petition from Louisiana.

Miller v. Louisana presented the question of “Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict?” The Court denied the petition yesterday.

For now, the anomalous Apodaca will stand. As Miller’s petition notes:

Concurring in the judgment in Apodaca, Justice Powell reasoned that even though the Sixth Amendment requires unanimity in federal cases, the Fourteenth Amendment does not demand the same in state cases. But this reasoning cannot be squared with this Court’s recent holding in McDonald that “[t]he relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle”: “incorporated Bill of Rights protections are to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” 130 S. Ct. at 3035, 3048 (internal quotation and citation omitted). . . . This Court should exercise that prerogative now. Stare decisis has limited force in this case and the constitutional right at stake is enormously important.

McDonald’s application to the incorporation of other provisions of the Bill of Rights seems to be at an end.

H/T Christian Science Monitor

A great discussion in the GW Law Review between Chief Judge Easterbrook and Judge Wood on McDonald and Originalism:

JUDGE WOOD: I’m going to point out that a certain Frank Easterbrook in the McDonald case made it very clear that he was indeed following some rather antiquated marching rules from the Supreme Court about whether the Second Amendment was incorporated through the Fourteenth Amendment and thus applicable to the states. And he said they said no in the nineteenth century; it wasn’t incorporated. But I would just say there are some very large hints in that opinion that he thought maybe some kind of incorporation was possible— I’m not sure he went as far as privileges and immunities—and that the McDonald result in the court of appeals wasn’t going to last too long. So lower court judges can, and sometimes do, come to the correct bottom line with a bit of dicta along the way about where things might go.

JUDGE EASTERBROOK: Somebody had asked me. I agree with Justice Thomas’s opinion in McDonald, although I didn’t think that as a judge of the Seventh Circuit I could overrule the Slaughterhouse Cases all by myself. (Laughter)

Fascinating. Easterbrook agrees with Thomas!

Win! Some more blog posts I wrote last night to follow. Nothing much on ACA. I still didn’t have time to read it.

The Court today disagrees, though it cannot settle on areason why. JUSTICE ALITO, joined by three other Jus- tices, advances two theories—that the expert’s summary ofthe Cellmark report was not offered for its truth, andthat the report is not the kind of statement triggering the Confrontation Clause’s protection. In the pages thatfollow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoningand every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dissent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark reportis nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.
That creates five votes to approve the admission of the Cellmark report, but not a single good explanation.

So based on Kagan’s dissent in Wlliams v. Illinois, is Justice Alito’s opinion in McDonald v. Chicago really a dissent?

Let’s see.

Justice Alito, joined by Roberts, Scalia, and Kennedy held that the Second Amendment is incorporated through the Due Process Clause. However, five Justices (Stevens, Thomas, Ginsburg, Breyer, Sotomayor) “rejected every aspect of its reasoning and every paragraph of its explication.”  Both in McDonald and Willimas, Justice Thomas offers a different rationale–“no other Justice joins his opinion or subscribes to the test he offers.” Thus, McDonald creates 5 votes to incorporate the Second Amendment, but not a single good explanation.

So is Alito’s plurality a dissent? What say you Justice Kagan?

I would say that “in all except its disposition, [Alito’s McDonald] opinion is a dissent.”

Update:

And oh snap:

The plurality thuswould countenance the Constitution’s circumvention. If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State couldsneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it

And Kagan calls Thomas’s opinion an “essay.”

The plurality also argues, as a “second, independent basis” for its decision, that the Cellmark report falls outside the Confrontation Clause’s ambit because it is nontestimonial. Ante, at 3. The plurality tries out a number ofsupporting theories, but all in vain: Each one either conflicts with this Court’s precedents or misconstrues thiscase’s facts. JUSTICE THOMAS rejects the plurality’s viewsfor similar reasons as I do, thus bringing to five the number of Justices who repudiate the plurality’s understanding of what statements count as testimonial. See ante, at 1, 12–15. JUSTICE THOMAS, however, offers a rationale of his own for deciding that the Cellmark report is nontestimonial. I think his essay works no better. When all is said and done, the Cellmark report is a testimonial statement

Is that supposed to be a sly insult? I’m not sure.

And this is pretty sharp:

But JUSTICE THOMAS’s approach grants constitutional significance tominutia, in a way that can only undermine the Confrontation Clause’s protections. . . . Indeed, JUSTICE THOMAS’s approach, if accepted, wouldturn the Confrontation Clause into a constitutional geegaw—nice for show, but of little value.

Kagan’s summary is vicious:

What comes out of four Justices’ desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what. Those decisions apparently nolonger mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority.
The better course in this case would have been simply tofollow Melendez-Diaz and Bullcoming. Precedent-based decisionmaking provides guidance to lower court judgesand predictability to litigating parties. Today’s plurality and concurring opinions, and the uncertainty they sow,bring into relief that judicial method’s virtues. I would decide this case consistently with, and for the reasons stated by, Melendez-Diaz and Bullcoming. And until a majority of this Court reverses or confines those decisions,I would understand them as continuing to govern, in every particular, the admission of forensic evidence.

Update: Is there a Justice Thomas exception to the Marks rule. No one took seriously his concurring opinion in McDonald? It doesn’t look like anyone will buy his concurring opinion in Williams. These CT 4-1-4 splits seem to go be controlled by the plurality.

I was at a reception at the Capitol Hill Club after McDonald v. Chicago was argued. It was attended by Gura, McDonald, and all the other people in the above photo. I was absolutely delirious at the time due to lack of sleep, and I only got a crappy picture on my crappy blackberry.