Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana

Court closures in response to the COVID-19 pandemic have led some to consider the viability of virtual jury trials, with state courts already beginning to conduct virtual trials in civil and criminal cases. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. The answer that Ramos suggests—that virtual criminal trials are unconstitutional—is, at least at first glance, difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is a self-described originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s “construction zone.” The Constitution says nothing about whether jury trials must be in person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to account for current circumstances. This Article compares the Court’s analysis in Ramos to that of prominent originalist scholars to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this Article demonstrates the extent to which originalist theory has succeeded in shaping Supreme Court decision-making.