Justice Gorsuch Argues the Jury Trial Clause Requires 12-Person Juries in Serious Criminal Cases

From Justice Gorsuch's dissent from denial of certiorari in Khorrami v. Arizona:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury. On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U. S. Constitution guarantee individuals like him a trial before 12 members of the community. The Arizona Supreme Court rejected the appeal, explaining that it considered itself bound by Williams v. Florida, 399 U. S. 78 (1970). There, for the first time and in defiance of centuries of precedent, this Court held that a 12-member panel "is not a necessary ingredient" of the Sixth Amendment right to trial by jury. In his petition for certiorari, Mr. Khorrami asks us to reconsider Williams. Regrettably, the Court today declines to take up that task. Williams was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation's courts….

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. In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law. That mistake continues to undermine the integrity of the Nation's judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable. Today's case presented us with an opportunity to correct the error and admit what we know the law is and has always been. Respectfully, we should have done just that.

For more historical details, see the opinion. Justice Kavanaugh would also have granted the petition, though he did not join Justice Gorsuch's opinion.