# Johnson v. Louisiana/Dissent Stewart

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* Case Syllabus
* Opinion of the Court
* Concurring Opinions Blackmun Powell
* Dissenting Opinions Douglas Brennan Stewart Marshall
[p397] MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.
This case was tried before the announcement of our decision in Duncan v. Louisiana, 391 U.S. 145. Therefore, unlike Apodaca v. Oregon, decided today, post, p. 404, the Sixth Amendment's guarantee of trial by jury is not applicable here. DeStefano v. Woods, 392 U.S. 631. But I think the Fourteenth Amendment alone clearly requires that if a State purports to accord the right of trial by jury in a criminal case, then only a unanimous jury can return a constitutionally valid verdict.
The guarantee against systematic discrimination in the selection of criminal court juries is a fundamental of the Fourteenth Amendment. That has been the insistent message of this Court in a line of decisions extending over nearly a century. E.g., Carter v. Jury Comm'n, 396 U.S. 320 (1970); Whitus v. Georgia, 385 U.S. 545 (1967); Hernandez v. Texas, 347 U.S. 475 (1954); Patton v. Mississippi, 332 U.S. 463 (1947); Norris v. Alabama, 294 U.S. 587 (1935); Carter v. Texas, 177 U.S. 442 (1900); Strauder v. West Virginia, 100 U.S. 303 (1880). The clear purpose of these decisions has been to ensure universal participation of the citizenry in the administration of criminal justice. Yet today's judgment approves the elimination of the one rule that can ensure that such participation will be meaningful–the rule requiring the assent of all jurors before a verdict of conviction or acquittal can be returned. Under today's judgment, nine jurors can simply ignore the views of their fellow panel members of a different race or class.
The constitutional guarantee of an impartial system of [p398] jury selection in a state criminal trial rests on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See, e.g., Whitus v. Georgia, supra, at 549-550; Carter v. Texas, supra, at 447; Strauder v. West Virginia, supra, at 310. Only a jury so selected can assure both a fair criminal trial, see id., at 308-309, and public confidence in its result, cf. Witherspoon v. Illinois, 391 U.S. 510, 519-520; In re Winship, 397 U.S. 358, 364. Today's decision grossly undermines those basic assurances. For only a unanimous jury so selected can serve to minimize the potential bigotry of those who might convict on inadequate evidence, or acquit when evidence of guilt was clear. See Strauder v. West Virginia, supra, at 309. And community confidence in the administration of criminal justice cannot but be corroded under a system in which a defendant who is conspicuously identified with a particular group can be acquitted or convicted by a jury split along group lines. The requirements of unanimity and impartial selection thus complement each other in ensuring the fair performance of the vital functions of a criminal court jury.
It does not denigrate the system of trial by jury to acknowledge that it is imperfect, nor does it ennoble that system to drape upon a jury majority the mantle of presumptive reasonableness in all circumstances. The Court has never before been so impervious to reality in this area. Its recognition of the serious risks of jury misbehavior is a theme unifying a series of constitutional decisions that may be in jeopardy if today's facile presumption of regularity becomes the new point of departure. Why, if juries do not sometimes act out of passion and prejudice, does the Constitution require the availability of a change of venue? Cf. Groppi v. Wisconsin, 400 U.S. 505; Irvin v. Dowd, 366 U.S. 717; Strauder v. West Virginia, supra, at 309. Why, if juries [p399] do not sometimes act improperly, does the Constitution require protection from inflammatory press coverage and ex parte influence by court officers? Cf., e.g., Shepherd v. Maxwell, 384 U.S. 333; Parker v. Gladden, 385 U.S. 363; Turner v. Louisiana, 379 U.S. 466. Why, if juries must be presumed to obey all instructions from the bench, does the Constitution require that certain information must not go to the jury no matter how strong a cautionary charge accompanies it? Cf., e.g., Bruton v. United States, 391 U.S. 123; Jackson v. Denno, 378 U.S. 368. Why, indeed, should we insist that no man can be constitutionally convicted by a jury from which members of an identifiable group to which he belongs have been systematically excluded? Cf., e.g., Hernandez v. Texas, 347 U.S. 475.
So deeply engrained is the law's tradition of refusal to engage in after-the-fact review of jury deliberations, however, that these and other safeguards provide no more than limited protection. The requirement that the verdict of the jury be unanimous, surely as important as these other constitutional requisites, preserves the jury's function in linking law with contemporary society. It provides the simple and effective method endorsed by centuries of experience and history to combat the injuries to the fair administration of justice that can be inflicted by community passion and prejudice.
I dissent.

## Notes

* ↑ And, notwithstanding MR. JUSTICE BLACKMUN's disclaimer, there is nothing in the reasoning of the Court's opinion that would stop it from approving verdicts by 8-4 or even 7-5.