Dissenting from the Supreme Court's denial of a petition for writ of certiorari in Cunningham v. Florida, Justice Gorsuch:
“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.” Khorrami v. Arizona, 598 U. S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9). Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations. See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.
Florida does what the Constitution forbids because of us. In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U. S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6). Before Williams, this Court had said it was “not open to question” that a jury “should consist of twelve.” Patton v. United States, 281 U. S. 276, 288 (1930). We had understood “the jury referred to in the original Constitution and in the Sixth Amendment is a jury constituted, as it was at common law, of twelve persons.” Thompson v. Utah, 170 U. S. 343, 349 (1898). Really, given the history of the jury trial right before Williams, it was nearly “unthinkable to suggest that the Sixth Amendment’s right to a trial by jury is satisfied” by any lesser number. Williams, 399 U. S., at 122 (Harlan, J., concurring in result).
Yet Williams made the unthinkable a reality. In doing so, it substituted bad social science for careful attention to the Constitution’s original meaning. …
(Via Eugene Volokh at Volokh Conspiracy.)
Posted at 6:49 AM