Thread by @JoshMBlackman

1/ "if it turns out that the unanimous-jury rule is itself a dubious originalist interpretation of the Sixth Amendment (which does not on its face say juries must be unanimous), that would be a reason to keep Apodaca." #SCOTUS
originalismblog.typepad.com/the-originalis…

2/ Ramos v. Louisiana may be a case in which J. Thomas finds that a right to a unanimous jury verdict is not a privilege or immunity, as understood in 1868. Will J. Gorsuch agree, or go along with SDP?

3/ Recall that RBG's opinion in Timbs decoupled incorporation from a right being deeply-rooted in history. (See my article w/ @ishapiro.) She may have done so with Apodaca on the horizon. papers.ssrn.com/sol3/papers.cf…

4/ Under Timbs, the right to a unanimous jury verdict is fundamental, and can be incorporated, even if it has no bearing on the original meaning of the 6th Amendment. Justice Thomas, and maybe Justice Gorsuch, can point this fact out.

5/ For what its worth, the cert petition in Ramos points out that all 9 Justices in Apodaca found that the right had historical roots.

6/ And this is flattering. The cert petition cited an article I wrote with @brianlfrye and Mike McCloskey on Justice Harlan's lecture notes. He argued that the Constitution required the unanimous jury verdict! papers.ssrn.com/sol3/papers.cf…

7/ More from Prof. Ramsey. J. White in Apodaca: "acknowledges that the unanimous jury is a long-standing tradition, but in an expressly non-originalist move finds that 'Our inquiry must focus upon the function served by the jury in contemporary society'"
originalismblog.typepad.com/the-originalis…

8/ J. White's analysis would be unthinkable today in a 6th Amendment case today: the original meaning of the Constitution is clear, but we should be guided by "contemporary values." I credit Justice Scalia with rooting out this sort of jurisprudence.

9/ This sort of "contemporary" analysis that rejects original meaning, though, was par for the course in Justice Kennedy's decisions concerning unenumerated rights, such as in Lawrence and Obergefell