Sullivan on Ramos

Dwight H. Sullivan

Dwight Sullivan posted a personal comment on CAAFlog that is must reading for anyone interested in the potential impact vel non of Ramos v. Louisiana on courts-martial:

[Familiar disclaimer: I offer this comment solely in my personal capacity; it shouldn’t be imputed to anyone or anything else.] I might be wrong – I often am – but I don’t see Ramos as a game-changer for the military justice system. In fact, I don’t even view it as particularly significant.

Ramos is based entirely on an interpretation of the Sixth Amendment’s petit jury right. As discussed further below, the Supreme Court has long concluded that the Sixth Amendment’s petit jury right doesn’t apply to the military justice system. If it did, that system would have ALREADY been noncompliant before Ramos.

For more than a century before Ramos, the Supreme Court applied a unanimity requirement to criminal trials under the authority of the federal government. As Justice Thomas’s separate concurrence notes, the Supreme Court first announced that rule in 1898 – long before even I was born. Thomas, slip op. at 1 (citing Thompson v. Utah, 170 U.S. 343 (1898)). And as Justice Gorsuch noted in a portion of his opinion speaking for a majority of the Court, “this Court has commented on the Sixth Amendment’s unanimity requirement no fewer than 13 times over more than 120 years.” Gorsuch, slip op. at 7. Yet since the country’s founding – and for 120 years after Thompson – courts-martial proceeded without a requirement for unanimous verdicts (except in one arcane scenario from 1920-2019 discussed further below).

But that’s not all. If the Sixth Amendment petit jury right applied to it, the military justice system would have been non-compliant with pre-Ramos Supreme Court case law on jury size and voting requirements as well. See Burch v. Louisiana, 441 U.S. 130 (1979); Ballew v. Georgia, 435 U.S. 223 (1978).


None of that mattered because the Supreme Court has consistently held and observed in dicta (and another portion of Justice Gorsuch’s opinion speaking for the Court gives considerable deference to oft-repeated SCOTUS dicta, Gorsuch, slip op. at 11) that the Sixth Amendment petit jury trial right doesn’t apply to the military justice system. Let’s look first at Kahn v. Anderson, 255 U.S. 1 (1921), a 99-year-old case in which that’s an actual holding. Kahn was a habeas case arising from a general court-martial of several prisoners at the USDB for killing another prisoner there. In addition to unsuccessfully arguing that the military couldn’t exert jurisdiction over them because they were no longer soldiers, the petitioners argued that even if they had military status, “to be tried by court-martial, deprived them of asserted constitutional rights.” Id. at 6. They expressly asserted a violation of their constitutional “guaranties as to jury trial.” Id. at 8. That argument, the Court unanimously ruled, is “without foundation, since it directly denies the existence of a power in Congress exerted from the beginning, and disregards the numerous decisions of this court by which its exercise has been sustained, — a situation which was so obvious more than forty years ago as to lead the court to say in Ex parte Reed, 100 U.S. 13, 21:

“The constitutionality of the acts of Congress touching army and navy courts martial in this country, if there could ever have been a doubt about it, is no longer an open question in this court. Const., art. 1, sect. 8, and amendment 5. In Dynes v. Hoover, (20 How. 65) the subject was fully considered and their validity affirmed.”

Id. at 8-9. 

So there’s a holding. Dicta to the same effect includes, among other cases, O’Callahan v. Parker, 395 U.S. 258, 261 (1969) (“The Fifth Amendment specifically exempts ‘cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger’ from the requirement of prosecution by indictment and, inferentially, from the right to trial by jury.”) (overruled on other grounds by Solorio); Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (“The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions.”); and Ex parte Milligan, 71 U.S. 2, 123 (1866) (“The sixth amendment affirms that ‘in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury,’ language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, ‘excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger;’ and the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth.”).

Moreover, Kahn’s holding and the similar dicta clearly comport with the Founders’ original understanding. Court-martial procedure departed from jury rights at the time of the adoption of both the Constitution and the Bill of Rights. Court-martial findings were by a simple majority vote. See Murl A. Larkin, Should the Military Less-than-Unanimous Verdict of Guilt Be Retained?, 22 Hastings L.J. 237, 239 (1971). Thus, the Founders clearly didn’t believe the jury right or the necessity for a unanimous vote to support a conviction applied to courts-martial. Interestingly, as originally drafted by Madison and as passed by the House of Representatives, the Bill of Rights’ petit jury provision and grand jury provision were combined, with the exception for cases arising in the land and naval forces applying to both. See 1 Annals of Cong. 452 (1789); H.R. Journal, 1st Cong., 86 (1789). During its consideration of the Bill of Rights, the Senate moved the grand jury provision, along with the land and naval forces exception, and deleted the petit jury provision. See generally Gordon Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293, 312-13 (1957). A conference committee subsequently reinserted the petit jury provision, but at a different location and without duplicating the land and naval forces exception. Id. at 313.

In 1800, Congress considered a bill to establish Articles for the Better Government of the Navy. 10 Annals of Cong. 655 (1800). John Randolph of Roanoke, who was elected to the Sixth Congress from Virginia at the age of 26, moved that the legislation be sent back to the Committee of the Whole. Quoting the Annals of Congress, which provided summarized rather than verbatim accounts of congressional debate:

He said he did this from impression that some of the provisions of it were unconstitutional, men being to be tried, and suffer by the decision of a court-martial, when the Constitution says, article 3, section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury.” And the amendment to the Constitution, article 7 [sic], says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time or war or public danger”; this, he conceived, prevented Congress ordering any court-martial. 

Mr. R. said he had no kind of objection to the bill, but he wished his scruples on these articles to be cleared up to him, or he must vote against it on the ground of unconstitutionality. 

Mr. Parker [Josiah Parker, also from Virginia, who had been a prominent officer in the Revolutionary War, who was commissioned as a naval officer after the war, and who served in the 1st Congress, which proposed the Bill of Rights] said he considered it indispensable that persons in the Navy, as had always been the case in the Army, should be tried for offences by court-martial. He believed the objections were fully answered by that part of the Constitution, article 1, section 8: “Congress shall have power to make rules for the government and regulation of the land and naval forces.” The “rules and regulations,” he supposed to be everything that related to subordination, which he thought was borne out by the exception in the amendment mentioned by the gentleman.

1 Annals of Cong. 655-56 (1800).

The Annals of Congress then records, “The motion to recommit was lost by a large majority.” Id. at 656.

In light of history and precedent, there seems to be no serious chance that the Supreme Court will hold that the Sixth Amendment petit jury right applies to the military justice system.

Nor is a due process challenge likely to prove viable. The Supreme Court is enormously deferential to Congress in establishing court-martial procedures. Less than four years ago, Congress adopted a 3/4 vote requirement for court-martial convictions as part of the Military Justice Act of 2016. It is extremely unlikely that the Court would disturb such a recent congressional action. In Weiss v. United States, 510 U.S. 163 (1994), the Supreme Court provided the due process test applicable to challenges to court-martial procedures: whether the factors militating in favor of the claimed procedural right are so extraordinarily weighty as to overcome the balance struck by Congress. Id. at 177-78. In making that assessment, the Court will be particularly deferential where the claimed procedural right has never been part of the military justice system. Id. at 179. With the rare exception of cases in which conviction resulted in a mandatory death sentence starting with the 1920 articles of war, unanimity has never been required for American court-martial findings. Today there are no mandatory death sentences, ergo there are no courts-martial for which Congress requires a unanimous vote for a conviction.

And there are particular reasons why a unanimity requirement might be particularly unsuited to military practice, starting with the potential effect of rank in the deliberation room. A system in which there is ONE vote by secret written ballot resulting in a finding on the merits is less susceptible to superiors overbearing their juniors than a system in which deliberation continues until unanimity is achieved. (Imagine, if you will, a case in which the senior member is part of a minority of members favoring conviction. Today you take a secret vote and, bam, you’re done. Might there be a concern that in a system that requires unanimity, the senior member might — intentionally or unintentionally — exert outsized influence, resulting in his minority position turning into a conviction? Might there be a danger of service member perceiving that’s what happens in the deliberation room?) Plus, the harm caused by hung juries (which proved so unpersuasive to the majority in Ramos) might be greater in a military setting, where repeating a court-martial could prove disruptive to military operations. The Supreme Court is singularly unlikely to substitute its judgment for Congress’s judgment on such matters.

Whether the current 3/4 voting requirement should be bumped up to unanimity is a question for Congress to decide – and a question that Congress did decide quite recently. Congress is free to revisit the question. The courts are unlikely to divest them of that authority.