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The Supreme Court said Monday that an earlier ruling that declared felony convictions by non-unanimous juries were unconstitutional and “a pillar” of the Jim Crow era cannot be applied retroactively.

The 6-3 decision in the case, known as Edwards v. Vannoy, leaves in limbo hundreds of people incarcerated in Louisiana and Oregon by non-unanimous jury verdicts — 80% of whom in Louisiana are black, and most of whom are serving life sentences.

In an April 2020 opinion, Justice Neil Gorsuch wrote that non-unanimous jury laws in Louisiana were designed to render Black juror service “meaningless.” Justice Brett Kavanaugh wrote the laws originated as “a pillar of a comprehensive and brutal program of racist Jim Crow measures against African Americans.” However, writing for the majority on Monday, Kavanaugh said that the 2020 decision in the earlier case, Ramos v. Louisiana, did not constitute a “watershed” ruling that can be applied retroactively.

Arguments in Edwards v. Vannoy had focused on whether the Ramos decision satisfied two standards set in a landmark 1969 case called Teague v. Lane, in which the court found if its own decisions led to “watershed rules of criminal procedure” or “new substantive rules,” then the decisions should be applied retroactively. 

Justice Elena Kagan, writing for the minority on Monday, said that the court should have considered Ramos a “watershed” case that “vindicated core principles of racial justice.”

The non-unanimous jury system in Louisiana was established during its 1898 state constitutional convention, in which delegates sought to “establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done,” according to an excerpt of the proceedings cited by the New Orleans Advocate.

The state constitution allowed for defendants to be convicted by a 9-3 majority of jurors, effectively silencing the voices of individual Black jurors.

Oregon’s rule dates to 1934, when a high-profile trial of a Jewish murder suspect that ended in a deadlocked jury drew public outrage. Newspaper editorials about the case were often blatantly anti-Semitic and within months, a ballot measure did away with Oregon’s requirement for juror unanimity, allowing defendants to be convicted by a 10-2 vote.

Louisiana’s split jury system continued until it was struck down by voters there in 2018, but Oregon’s remained until the Ramos ruling in April 2020.

That case was brought by Evangelisto Ramos, a Louisiana inmate convicted of murder for a 2014 killing by a 10-2 jury vote. In his concurring opinion, Kavanaugh wrote, “To state the point in simple terms: Why stick by an erroneous precedent that is egregiously wrong as a matter of constitutional law, that allows convictions of some who would not be convicted under the proper constitutional rule, and that tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects?”

The Ramos ruling afforded the right to a new trial for defendants convicted by a non-unanimous jury whose appeals were still pending. But the Constitution doesn’t grant relief for those whose convictions had already been finalized, the Supreme Court ruled Monday.

Jamila Johnson, who represents more than 1,000 Louisianians convicted under non-unanimous decisions, said Monday she was “disappointed” in the Supreme Court’s ruling.

“It failed to correct systemic racism and failed to account for the impact that this practice has had on so many lives, but we are presently still in the fight though,” Johnson said.

Johnson pointed to HB-346, legislation proposed on April 21 in the Louisiana House of Representatives, that if passed could provide legal remedies for those convicted by non-unanimous juries.

“What the Supreme Court said today was that they would not find it retroactive for federal collateral review, which means we are now dependent on the state to do the right thing. And we’re going to continue to fight to on behalf of the men and women who spend every night in Louisiana’s prisons with this unconstitutional, Jim Crow law,” Johnson said.