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.

Comments

[Dan Schiavetta]

It’s odd that Gorsuch thinks that Williams v. Florida was based on “bad social science”. Or maybe it isn’t so odd because conservatives like to denigrate any kind of expertise. The Williams opinion mentions scientific research only glancingly. White’s analysis is mainly historical.

In fact to get to its result there the Court disregarded the findings of social science (psychology). Someone who is all alone on a jury of 6 is prone to go along with the crowd despite his better judgment, which we all agree is not good. That is less likely to happen in a 12-person jury where it’s more likely that there will be one other person who agrees with him. In his majority opinion White acknowledges this but oddly rejects this argument on the grounds that it would help the prosecution (2 votes for conviction, preventing acquittal) as well as the defense (2 votes for acquittal, preventing conviction). Which should be neither here nor there.

[Joe_dallas]

captcrisis 40 mins ago (edited)
Flag Comment Mute User
"It’s odd that Gorsuch thinks that Williams v. Florida was based on “bad social science”. Or maybe it isn’t so odd because conservatives like to denigrate any kind of expertise. "

More likely the conservatives to like to rely on bad expertise which permeates through out much of what is social science.

[David Bhear]

Jury system, very cool advancement in 1275 AD. Today, just an expression of feelings, of likeability of the parties, and another garbage methodology of the failed lawyer profession.

[Michael D]

You are back!!

[ducksalad]

Captain, just for clarity, what is your opinion on 12 person juries?

Suggested multiple choice options;
(a) There is not a right to a 12 person jury and that's a good thing.
(b) There is not a right to a 12 person jury. That's unfortunate, but Gorsuch is wrong to try and create one.
(c) There is a right to a 12 person jury, but Gorsuch's reasoning has a flaw so we've got to screw everyone out of a 12 person jury trial.

[Dan Schiavetta]

Gorsuch came to the right conclusion but for the wrong reasons.

[ah....Clem]

I see the dissent. I suppose that there's no opinion denying cert and no vote count? Surprised that Gorsuch and Kavanaugh couldn't round up two more votes for cert. Any speculation why? Court too busy as it is?

[Reallynotbob]

Possibly because the rest of the Court can read the Sixth Amendment in the original plain English.

But for bonus points, Justice White's decision actually spends many pages discussing the history of the petit jury itself, its functions, the "accidental" 12-person convention, and the lack of evidence that the Constitution--while silent--meant to preserve *this* feature of the common law jury but not other features:

"We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics." .... To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions.... Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group.... Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury.

[Area Man]

"Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury’s primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group…. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury."

That's absurd. Can the federal government or a state make the "jury" one person? Can that person be the judge or prosecutor? The Constitution doesn't say they can't, so, by your and White's logic, they can.

[Reallynotbob]

Arguing reductio ad absurdum does not take you where you want to go. The Sixth Amendment also fails to define "trial." Must the judge wear a wig? Can a Legislature change the rules of hearsay? Or are we stuck with Ye Olde English Procedures until someone amends the Constitution?

[The Margrave of Azilia]

I don’t recall Blackstone saying that a judicial wig is essential to a criminal trial, the way he said a 12-person jury was.

As someone said: "Arguing reductio ad absurdum does not take you where you want to go."

[JasonT20]

I didn't find the footnote in the Constitution that references Blackstone.

[The Margrave of Azilia]

What evidence would *you* accept as to the meaning of the term "jury"?

[Reallynotbob]

Read the White opinion if you have not. It's pretty good at reviewing the history of common law juries and their accepted function. I know it's radical in contemporary circles to consider function above form, but that's how SCOTUS used to think about law.

[phoqueue]

I think "jury" entails multiple deliberators. But what about 2 or 3?

[Zarniwoop]

Ballew v. Georgia, 435 U.S. 223 (1978), holds that the number of jurors can't be below six.

[Noscitur a sociis]

Under Ballew v. Georgia, 435 U.S. 223 (1978), 6 is the minimum.

[Drewski]

No, the word "jury" is a collective noun (the individual noun is "juror"). By definition, a jury must be comprised of multiple people. Your other concerns are covered by the Due Process Clause, which does indeed say that a prosecutor cannot be a juror if you don't read it naively.

[CJColucci]

I tend to think this is right. Not every particular feature of the jury trial as it was in 1789 is, for that reason alone, compelled by the Constitution. Suppose a state wanted juries of 18? Would that be unconstitutional? And, if so, why?
That said, there must be a point where a jury gets to be so small that it loses its status as a collective, deliberative body, and it may be hard to say why 8 is OK, or 6 is OK, but 3 isn't. But I'd be shocked if any state would OK juries that small.

[Zarniwoop]

Ballew v. Georgia, 435 U.S. 223 (1978):

MR. JUSTICE BLACKMUN, joined by MR. JUSTICE STEVENS, concluded that a criminal trial to a jury of less than six persons substantially threatens Sixth and Fourteenth Amendment guarantees. Georgia has presented no persuasive argument to the contrary. Neither the financial benefit nor the more dubious time-saving benefit claimed is a factor of sufficient significance to offset the substantial threat to the constitutional guarantees that reducing the jury from six to five would create. Pp. 435 U. S. 229-245.

MR. JUSTICE WHITE concluded that a jury of less than six would not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments. P. 435 U. S. 245.

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST joined, concluded that, though the line between five- and six-member juries is difficult to justify, a line has to be drawn somewhere if the substance of jury trial in criminal cases is to be preserved. Pp. 435 U. S. 245-246.

[Joe_dallas]

Why others did not join the dissent for denial of cert?
Likely that likely there 4 in favor, and 5 against and that it would be unlikely to overcome the 5. therefore chose not to risk enshrining the 8 man jury

[Noscitur a sociis]

As noted in the opinion, the "8 man jury" is already "enshrined" (insofar as the Supreme Court has said that it's constitutional).

[defaultdotxbe]

Not enshrine it longer than it needs to be enshrined. It's possible after another 1 or 2 justices are replaced the case may be ripe for reversal, but if it's upheld now even justices who want to reverse may be hesitant to revisit so soon.

That said, its probably more a matter of not wanting to waste the court's time affirming an already-existing decision.

[Reallynotbob]

Good to see Justice Gorsuch drawing a bead on that great Liberal jurist, Byron White.

/s for those who don't know about Justice White. He wrote Williams v. Florida. White was consistently opposed to "finding" new rights in the Constitution. For Gorsuch to suggest White's majority opinion *not* conjuring an unwritten 12-juror requirement from the text of the Sixth Amendment infringed a right "long and justly considered inviolable" is pretty rich.

[Area Man]

Does the Constitution require criminal charges to be proven beyond a reasonable doubt? It's not written in the Constitution. But the Supreme Court said it does. In re Winship, 397 U.S. 358 (1970). Strange.

[Reallynotbob]

I'm with you. I just think Gorsuch is tilting at an odd windmill.

The Supremes came up with the Miranda rule also, and then re-affirmed it under Justice Rhenquist. Giving meaning to the enumerated rights bothers me less than some people here. (And it bothered Justice White.)

[Shamie Ervin iv]

Next it'll be 7, then 6, then 5, and so on down to 2. A pox on the justices who refused votes to grant cert.

We had a jerk law prof a few years ago, right here in VC, propose to abandon jury trial in civil cases. A pox on her too.

The jury is the Palladium of Liberty. Let's just forget about the jury of 12 in English Common Law incorporated into our constitutions. A pox on us for letting it happen.

[Reallynotbob]

Mississippi v. Florida already affirmed a verdict by a jury of 6 in 1970. You may begin panicking 52 years ago.

I wonder what other sacrosanct English Common Law traditions you might find enshrined, unwritten, in the Constitution? Hey, how about the English Common Law "quickening" rule for abortions?

[The Margrave of Azilia]

But what about abortion, huh?

Seriously, I don't see how abortion leads to 6-person juries.

[Zarniwoop]

You have it bass-ackwards. The same logic (if consistently applied, which we all know it isn't!) that leads Gorsuch to conclude English common-law tradition means "Jury = 12" is the same logic that should preserve the English common-law tradition of women to own their bodies and make termination decisions without state interference up until quickening.

Again, I don't think anyone should be terribly surprised that Gorsuch (and pretty much every Justice across the political spectrum) makes calls based on their personal prefs at times.

[The Margrave of Azilia]

If the Constitution codifies the common-law assumption that life begins with noticeable movement in the womb, then it should also codify the principle that, after quickening, abortion is a crime. Yet the preachers of consistency don't seem to take their preachments that far.

Not every part of the common law was recognized as a human right or civil right at the time of the Constitution. Some parts of the common law were (at least by the 18th century) recognized as rules which could be changed without overthrowing the whole basis of the constitution. Other parts were recognized as rights. It doesn't have to be written down to be a right (the 9th Amendment makes that clear), but it had to have been recognized as a right, not just as a rule dictated by convenience.

[Zarniwoop]

The (debated) existence of a pre-quickening common law to self-determination without gov't interference does not necessarily require that state regulation after quickening must be a crime, even if it's completely legit grounds for state regulation.

Do try to brush up on some formal logic here.

[The Margrave of Azilia]

IIRC, Blackstone said that the God-given right to life attached upon quickening.

[Zarniwoop]

Fair enough, sure, then Blackstone's "right to life attached after quickening" could also be part of a consistent interpretive landscape ... if we were to elevate Blackstone to the same level as the Constitutional text.

Which we don't, according to most Justices, except when they happen to like the stuff Blackstone says.

But substantively? I'm in favor of "not the gov'ts business" up until quickening and "regulated after that", so I have zero problem with that as an actual result.

[Shamie Ervin iv]

A pox on Williams v. Florida. Also, a pox on your "whatabout." And a pox on...

[Armchair Lawyer]

Actually, 5 and lower are outlawed.

[larryseltzer]

The only criminal jury I was ever on, in Massachusetts, was a 6 member jury. FWIW, I don't think 12 would have made a difference, dude was obviously guilty and it's strange that the case made it to trial.

[Joe_dallas]

Not so strange that it went to trial - I was once on jury pool where the guy was obviously guilty. DA gave him a plea bargain close to the max. He went to trial only to see if he could cut a better deal in the sentencing phase.

[Both Sides]

I’ve seen the phrase “[X case] was wrong the day it was decided, it remains wrong today” (or something close to that) in various Supreme Court opinions.

Is there any opinion that says, “Well, [X case] was right the day it was decided, but it’s wrong today”? Obviously, if there has been an intervening Constitutional Amendment that significantly changes an area of law, it could be consistent to think so, but I’ve never seen that.

So, generally, wouldn’t it be easier to say, “[X case] was wrongly decided” full stop?

[Rossami]

The Voting Rights cases that require judicial pre-screening of legislative decisions are often described as right for the time when they were decided (when discrimination was overt and often codified in state and local law) but wrong today (when the discriminatory practices have been abolished for longer than they were in place, the legislative powers and controls are different, etc.

Various decisions about laws affecting communications are also described as right for their time but wrong - or at least, inapplicable - today because the underlying modes of communication are so very different now.

So, yeah, I think there is a place for "it was wrong the day it was decided and remains wrong today" as a rhetorical device for differentiating from those others.

[Both Sides]

Nice, I appreciate the informative reply.

[JasonT20]

The Voting Rights cases that require judicial pre-screening of legislative decisions are often described as right for the time when they were decided (when discrimination was overt and often codified in state and local law) but wrong today (when the discriminatory practices have been abolished for longer than they were in place, the legislative powers and controls are different, etc.

I thought that the Voting Rights Act was what required pre-clearance by the Justice Department, not any court rulings. Thus, my problem with Shelby v. Holder was that Roberts' majority opinion usurped Congress's power to implement the 14th and 15th Amendments. The VRA had been reauthorized less than 10 years prior to Shelby, so the argument that the old formulas were too old wasn't their call to make. Really, the problem Roberts had with pre-clearance was that it existed. He was pushing to get rid of it when he was in the DoJ himself under Reagan, but Reagan went ahead and signed the reauthorization of the VRA at the time that kept pre-clearance.

Roberts and the other conservative Justices decided that since Republicans in Congress didn't want to risk the political fight to get rid of it or release some states and jurisdictions from pre-clearance, they would do it for them.

[Rossami]

Yes and no. The idea of pre-clearance was established in the statute but it was individual court cases that determined that State A was a "covered jurisdiction" subject to that requirement - and more importantly, that it still was many years and many changes later.

The formulae were also established by statute but, as you say, they were to implement the Amendments. When they not only failed at that goal but started to actively suborn it, the statutes no longer deserved deference.

[JasonT20]

When they not only failed at that goal but started to actively suborn it, the statutes no longer deserved deference.

In what ways did pre-clearance suborn the goals of the VRA?

[Rossami]

It's not that the idea of pre-clearance suborned the goals of the VRA but the formulae used to establish who was a "covered jurisdiction" subject to pre-clearance did suborn those goals. Specifically, the court found that the disparate treatment that was the inevitable result of using 40-year-old data violated the rights of both the affected states and their voters.

Remember that what sparked this whole lawsuit was an argument over a proposed voting rule by a state subject to pre-clearance that was an utterly uncontroversial rule in many northern states not subject to pre-clearance. In other words, pre-clearance was no longer being used to root out actual discrimination - it had become a punitive measure against disfavored states. It was being used to disenfranchise the voters in those states subject to pre-clearance who wanted the same protections and protocols as other states enjoyed.

[BillyG]

Check out Sandra day O'Connors opinion upholding affirmative action in college admissions from 03. I think I got at that right. She said it wouldn't be necessary in 25 years. 19 years later, it's in front of SCOTUS again.

[The Margrave of Azilia]

Reading Gorsuch’s dissent, it totally owns Justice White.

For instance: “In 1769, Blackstone stated the rule succinctly: No person could be found guilty of a serious crime unless “the truth of every accusation [was] confirmed by the unanimous suffrage of twelve of his equals and neighbours.” 4 Commentaries on the Laws of England 34.” Gorsuch followed this by numerous commentators and court decisions, including from the U. S. Supreme Court.

The Williams Court did, indeed, use bad social science to speculate that a 6-person jury would deliberate just as well as a 12-person jury. But later studies have, as any sensible person could have predicted, undermined that sociological speculation.

Particularly, it confirmed what ought to have been obvious – that 6-person juries are less likely to have black members, and juries without black members are more likely to convict black defendants.

Don’t dismiss the 12-person jury rule simply in a zeal to own Gorsuch and the conservatives.

[Zarniwoop]

The Williams Court did, indeed, use bad social science to speculate that a 6-person jury would deliberate just as well as a 12-person jury. But later studies have, as any sensible person could have predicted, undermined that sociological speculation.

I’m confused, are you advocating interpreting the Constitution based on social science studies that post-date 1970?

Compare to a possible textualist analysis: “I don’t see the number ’12’ in the the 6th Amd., end of story.” The conservative wing of the S.Ct. claims to be textualist and originalist when it suits them, right?

I have zero dog in this fight … but this seems like it’s a fine example of inconsistent constitutional interpretation paradigms.

To me, the completely unsurprising observation is that Justices change their interpretive modes when it suits their personal preferences (see, e.g., Scalia in Gonzales v. Raich – basically, “drugs are bad m’kay”).

And that’s more relevant than the substantive issue at play here.

[JasonT20]

To me, the completely unsurprising observation is that Justices change their interpretive modes when it suits their personal preferences (see, e.g., Scalia in Gonzales v. Raich – basically, “drugs are bad m’kay”).

This has happened because Presidents and Senators have spent at least a century (or perhaps since the first Justices) choosing nominees and whether to confirm them based on their own personal preferences rather than for consistency and logical reasoning. If Republican Presidents will only nominate Justices that have conservative bona fides and wear their religion on their sleeves, while Democratic Presidents will only nominate liberals, then of course you get Justices that won't do much to temper their personal views.

The Supreme Court, and federal judiciary more generally, has become so politicized because both sides wanted it that way. They each just hoped that their side would win the struggle, and it was Republicans that won.

[Zarniwoop]

Yep. And in other news, water is wet!

[The Margrave of Azilia]

So the 12-person rule is guilty by association. If Sotomayor defended this right, would you be willing to defend it?

“I’m confused, are you advocating interpreting the Constitution based on social science studies that post-date 1970?”

Gorsuch said the 12-person rule was backed up by eminent jurists and court precedents, right up until Justice White got rid of it.

*Then* Gorsuch took on the bad sociology which White used against the rule. He encountered White on his own sociological turf and beat him.

Hopefully, the liberal justices will join Gorsuch – if not because of the opinions of distinguished judges and jurists, at least because minorities are hardest hit by a 6-person rule (or 8-person).

[Zarniwoop]

So the 12-person rule is guilty by association. If Sotomayor defended this right, would you be willing to defend it?

Depends on what her arguments are ... not the identity of the person making the argument. Same way that this "jury must = 12" kerfluffle isn't really about Gorsuch per se as much as the glaring inconsistency of constitutional interpretation modes that actually depend on a Justice's personal preferences.

You know, like how law is supposed to work (the whole "balls and strikes" myth). Despite the fact that we know it doesn't. And neither Gorsuch or Sotomayor is immune from that criticism.

[The Margrave of Azilia]

All right, we both know judges don't always live up to their billing. They make bad decisions.

But I'm interested in this particular decision.

It appears to me that whether you're referring to the strong weight of authority from jurists and judges, or whether you're looking to it as a matter of racial justice, the 12-person definition wins.

[Zarniwoop]

I agree that a 12 person jury is a fine standard. It certain has a good historical pedigree. If I had to pick one number for a complete "one size fits all" answer, sure, I could go with 12. Not much disagreement from me on that one.

Is 12 required by the Constitution? Meh! I'm less convinced 🙂

[Brett Bellmore]

The problem isn't 12 vs 6. Though I tend to agree it was a 12 person jury being guaranteed, the text isn't explicit on that score.

The problem is that "serious".

The 6th amendment guarantees the right to trial by jury in "all" criminal cases, not "serious" criminal cases.

"All" is not a particularly ambiguous word. One might say that few words in the English language are more lacking in ambiguity and nuance than "all".

Until the Court rules that "all" actually means "all", they're just playing at being textualists.

[Sebastian Cremmington]

The Zimmerman trial shows that a jury of 6 is too easy to game by getting one plant on it. So Zimmerman hired a high priced jury consultant and he won the case as the attorneys on both sides were pretty weak with the prosecutors being clowns. So 5 jurors initially wanted to convict him of manslaughter but one juror convinced them to acquit.

[Noorondoor]

If they had convicted him of manslaughter, that would be clear error. He either was justified in using deadly force or he was not. If he wasn't, it wasn't manslaughter.

Too many jurors in self defense cases ignore the law and instead think "Could the shooter have avoided the situation which led to him killing the other person?" That might make sense to emotional women, but it's not the law, anywhere.

[JasonT20]

Too many jurors in self defense cases ignore the law and instead think “Could the shooter have avoided the situation which led to him killing the other person?” That might make sense to emotional women, but it’s not the law, anywhere.

Actually, unless that state has a so-called "stand your ground" law in effect, they might require a "duty to retreat" from a threat. That perspective is: if you can safely escape a threat, then you should. Otherwise, it wasn't truly necessary for you to resort to force. A person is not required to retreat from their own home or place of work, though, even in states lacking a stand-your-ground law of self-defense. (Stand your ground was not asserted in the Zimmerman case, even though Florida does have such a law.)

[Brett Bellmore]

Stand your ground was utterly irrelevant in the Zimmerman case: Martin had him on his back on the sidewalk, punching his head into the pavement. There's no avenue of retreat under circumstances like that.

[JasonT20]

Right, I wasn’t claiming otherwise. I was just making it clear that the details of self defense claims are different in law in different states. States that don’t have stand-your-ground might specifically require a duty to retreat, others might be kind of vague on that, leaving it up to a jury whether the force was necessary or not.

I’m sure that there were things Zimmerman could have done differently, but he didn’t start the fight, and once on the ground with Martin on top of him, his options become much more limited. I didn’t watch the trial, nor have I seen all of the testimony on video since then, so I am not going to second-guess the jury either way on this. But the little that isn’t in dispute makes it seem hard to argue against self-defense.

[JasonT20]

The problem isn’t 12 vs 6. Though I tend to agree it was a 12 person jury being guaranteed, the text isn’t explicit on that score.

Right. Why 12? Because Blackstone said so? Are blatant arguments from authority how Gorsuch decides cases? Why did Blackstone say 12? Why not 13 or 14 or 20?

That English courts in the 18th century had arbitrarily picked 12 and then stuck with it is not a valid reason to argue that 12 is a magic number.

As a supposed Textualist, I don't get how Gorsuch could find a specific number in the Constitution when there isn't one. Imagine this alternate reality: The Constitution doesn't specify any ages as qualifications for federal office. But Ben Franklin wrote while the Constitution was being debated and ratified that only someone at least 35 could be mature and experienced enough to be President. Then, for 200+ years, no one under 35 had been elected President. Would Gorsuch say that the 35 age minimum was a Constitutional requirement?

[Area Man]

There are actual historical reasons why 12 was used. It wasn't just some random number the English common-law courts picked.

But that's irrelevant. What is relevant is that the Founders believed that a "jury" constituted 12 members. They likely got that from Blackstone. And even if Blackstone was incorrect (he wasn't, but let's assume he was), that too is irrelevant. Blackstone isn't who we look too when determining the meaning of the early Constitution because of Blackstone per se. It's because the Founders considered him authoritative. So even if they relied on Blackstone's mistakes, those mistakes are what was codified into the Constitution.

And your analogy about the age of office seekers is inapt. A "jury" meant something specific to the Founders. But the age requirements were largely arbitrary. A better analogy would be that if there were no age limits, infants would still be ineligible because it was obviously implied that an office-holder couldn't be someone so young. In other words, that would be so obvious that it wouldn't have to be mentioned in the actual text of the Constitution.

[JasonT20]

There are actual historical reasons why 12 was used. It wasn’t just some random number the English common-law courts picked.

1) I would like to know what those reasons are, out of curiosity, if nothing else.
2) If it wasn't relevant how and why it ended up being 12, then there is no logic to saying that it must be 12 when the Constitution doesn't specify a number. It would also matter whether it was consistently required to be 12 for criminal trials across all states. If it wasn't, then it is really hard to argue that the Founders had a unified and unwritten understanding that a "jury" consisted of exactly 12 people.

Blackstone isn’t who we look too when determining the meaning of the early Constitution because of Blackstone per se. It’s because the Founders considered him authoritative. So even if they relied on Blackstone’s mistakes, those mistakes are what was codified into the Constitution.

I seriously doubt that the Founders were that unified in their respect and reliance on Blackstone, or that they agreed with Blackstone on everything. That is part 1 of what would be necessary for your claim that even Blackstone's "mistakes" are "codified into the Constitution" when his words don't appear in that document. Part 2 would be that the Founders understood that such English common law traditions would be required by the Constitution, when nothing in the text of the Constitution says that either. And that everyone that voted to ratify the Constitution agreed with that. ("Founders" isn't really a precise list of people anyway, so saying what "the Founders" understood or believed is already going to depend on what sources you pick and who you count among them.)

That is my problem with this argument Gorsuch used in his dissent, and with originalism more generally. He is trying to put a specific number as required by the Constitution when the Constitution itself does not. When specific values of something are required by the Constitution, like the age requirements for Congress and President, they are written into the document. It seems to be against textualism to argue that a jury must be 12 because of that, and I am not convinced that even originalism as practiced by SCOTUS conservatives would get them there either.

I would absolutely agree that a jury shouldn't be too small, so we might as well stick with 12. But given how often conservatives complain about relying on the written Constitution and not what a judge thinks or feels is right, I am definitely going to call out poor reasoning when I see it. And I don't agree that the Constitution has any numerical requirements for anything hidden between or behind the words.

A better analogy would be that if there were no age limits, infants would still be ineligible because it was obviously implied that an office-holder couldn’t be someone so young. In other words, that would be so obvious that it wouldn’t have to be mentioned in the actual text of the Constitution.

No, that is a reductio ad absurdum version of my analogy. If there had not been an age limit listed in the Constitution, then that may have been because they would have assumed that not enough people would vote for someone "too young" for it to ever be an issue. That is what I am supposing in my analogy. If the Founders really thought it necessary for a jury to be at least 12 people, then they had the same opportunity to write that into the 6th Amendment as they did to put age limits for Congress and President.

[David Nieporent]

That is my problem with this argument Gorsuch used in his dissent, and with originalism more generally. He is trying to put a specific number as required by the Constitution when the Constitution itself does not. When specific values of something are required by the Constitution, like the age requirements for Congress and President, they are written into the document.

No. That cannot be right. The constitution is not a statutory scheme; it is a list of principles. Like "due process," and "jury." If "jury" can mean anything because it isn't spelled out, then "due process" could, too. We could have five person juries with only 3 votes needed to convict. (Or, as someone alluded to above, a single person "jury." (Which at least would preserve the unanimity requirement!)) We could have the burden of proof of innocence be on the defendant. We could have — as someone said above — a standard of proof far less than "beyond a reasonable doubt."

There are only three ways to address those issues:

1) Decide that the Constitution is silent on all these points and states are free to do whatever they want, all consistent with due process and a jury trial.

2) Decide that the Constitution is ambiguous on these points and therefore SCOTUS should just pick whatever rules it thinks are a good idea, and declare that those are what constitute due process and a jury trial.

3) Decide that the Constitution incorporates background understandings of the concepts of "due process" and "jury" from the time it was ratified.

[JasonT20]

I take your point that terms used in the Constitution can relate to principles rather than specific technical terms. But "jury" can't mean one person, nor could "due process" just mean that the government filled out some forms. I would agree that 1) is not acceptable, but I think that there is a range of options in between 2) and 3). I don't agree that it would be one or the other of those options.

Originalism, as I understand it, isn't just looking to incorporate background understandings from the time of ratification, but to definitely determine what those understandings are and then insist on using that understanding even when it contradicts modern understanding of the same words.

I've seen people basically say that persons being guaranteed Equal Protection of the law can't include LGBT rights, because those at the time the 14th was ratified wouldn't have understood it to mean that, even though being LGBT does include persons. This leads to bullshit like, "A gay man has the same right to marry a woman as a straight man. Boom! Equal Protection satisified!"

If SCOTUS wants to look at historical and modern practice and decide what types of juries will uphold a constitutional right to a jury trial, I don't have a problem with that. I do have a problem with using a specific number as if it is magic, with tradition and history being the only justification. (Again, the question not being answered with reason or evidence is why 12? Why not 10 or 11? Would a jury of more than 12 be okay?) These kind of arguments, whichever ideology the justices adhere to, are too much like the logical fallacies of argument from tradition or argument from authority. If SCOTUS can't do better than to use logical fallacies and call it an interpretive theory, then I actually don't even see much practical difference between 2) or 3).

[David Nieporent]

No, it's not "because Blackstone said so." It's because (at least according to Gorsuch) a 12-person panel was universally understood to be the definition of jury at the time the constitution was ratified. Blackstone's statements — as well as other things cited by Gorsuch! — are evidence of this point, not the justification for it.

[JasonT20]

I found this article from the Duke law school, it seems. It was interesting reading a perspective on why we should use 12. It fills in a lot more information that I was looking for than what I had seen so far here. Of note, it does much more than rely on the history. (And it is more complete with its history than anything in the article or comments here with the history.) It makes reasoned arguments both from history and from studying how people work together in juries and empirical studies of group behavior. Gorsuch could be right that Williams was decided based on bad social science.

I’m willing to admit that I may have been wrong here. I generally take a very dim view of originalism and, mostly, of how conservative judges and SCOTUS applies it, for reasons I think I’ve made clear and that I still hold. But that has prejudiced my thinking on this particular issue.

[phoqueue]

I've haven't done any serious reading of criminal law cases since I took a criminal constitutional law class in law school -- which was a while ago. Is the word "serious" here used to avoid a dispute about what is "criminal" for constitutional purposes?

[Brett Bellmore]

Perhaps, but there's still that "all", and no "serious", and they are sham textualists until they do something about that.

[Armchair Lawyer]

Next, do $20 and civil trials...and make the 7th Amendment applicable to the states.

[Brett Bellmore]

I've already done that one: There are several legitimate ways to interpret $20, the Court chose none of them.

[Boomer]

Sheesh. Didn't any of these people see 12 Angry Men?

[Syd Henderson]

Maybe they wanted a shorter movie.

[Toranth]

6 Annoyed People?

[Currentsitguy]

Maybe Reader's Digest got ahold of it.

[Frank Drackman]

Dammit! you beat me to it

[Gasman]

If jurors acted independently, then size would matter substantially at these relatively small juror samples, whether 6, or 8 or 12.
If we draw the jurors as a sample of the defendant's peers from an at-large population where 95% of individuals would convict after hearing the evidence, and those jurors acted independently, then the likelihood for conviction for 6, 8, and 12 jurors would be 74%, 66%, and 54% (calculation for independent odds being probability^N).
If the case is quite strong, say 99% of potential jurors would convict, then conviction rates of 94%, 92%, and 90% would occur.
A weak case, say only 66%, then conviction at 9%, 4%, and 1%

But jurors do not act independently. They do not work in an information void without knowing how others in the jury are thinking, and voting. Jurors are prodded to produce a binary outcome of 0/N or N/N. (with hung jury rules kicking in for the non-binary outcome). It is intended for jurors to influence each other in reaching consensus.

So from a defendant's perspective, who 'needs only one juror' to avoid conviction, is his lone holdout more likely to hold out against 5 other jurors, 7 other, 11 other?
If defendants could choose the size of the jury, what would they choose?
The defendant already has the option of a jury of 1(the judge) or a jury of statutory/customary size. Why not offer the defendant a choice of something in-between if they wish.
Watching game theory and behavioral analysis play out might be interesting.

[Zarniwoop]

see also game theory relating to "unanimous verdict required", as the word "unanimous" is also not present in the 6th Amd.

Personally, I would tend to favor a unanimity requirement over a "jury must be 12 people" requirement, but neither of them are in the text of the 6th Amd.

[The Margrave of Azilia]

"neither of them are in the text of the 6th Amd"

The text of the constitution says "jury."

As Gorsuch pointed out, lots of jurists and court thought a jury meant a panel of 12. If all those authorities were wrong, then what *is* the definition of a jury, in your opinion?

[JasonT20]

As Gorsuch pointed out, lots of jurists and court thought a jury meant a panel of 12.

"lots" isn't "all". Without any way to poll the Founders now, it will always be imprecise at best, and cherry picked history at worst, to guess whether the Founders really understood "jury" to mean 12 people.

[The Margrave of Azilia]

I’m not talking about the founders’s personal opinions, I’m talking about what “jury” meant according to recognized authorities on the common law.

That’s whom you consult when the Constitution uses a common-law term, not the private views of the founders or (as White did) what measures they debated in Congress before settling on using a common-law term.

You see, it was White who appealed to subjective considerations of what the Founders were supposedly thinking in 1789 – your criticism is best directed against White, not against Blackstone and all those other recognized, publicly-available sources pointing in the same direction.

White "cherry-picked" his history.

And even if the Founders *thought* they were using some idiosyncratic definition of "jury" which contrasted with the usual meaning, then too bad, they should have codified their idiosyncratic opinions in law if they wanted those opinions enforced.

[LGDaub]

This is the man who said the Oklahoma reservation was still there because Congress never explicitly ended it. It had become a custom to think it was gone, but he said the text of a law was needed.

Now he argues that the custom of 12 unanimous jurors is actually a requirement, even though neither condition is in the text of the Constitution. And in the case of Arizona and five other states, not in the text of their laws, either.

[Brett Bellmore]

The argument here is actually reasonable enough. It's that 12 and unanimous were part of what trial by "jury" meant.

After all, it's not as though they were inventing the notion of "trial by jury" from scratch. If they had been, they might have gone into detail. They were adopting an already existing and functioning institution. It's not crazy to say that they were incorporating the details of that existing institution.

[The Margrave of Azilia]

I don’t know if the Oklahoma case was done right, but it’s statistically unlikely that Gorsuch (or any Justice) would get it right all the time.

If he was wrong then, he could still be right in this instance – and I think he is.

The 12-person rule wasn’t merely a custom, it was a custom widely acknowledged as law until Justice White and his buddies got their hands on it.

[Noorondoor]

Gorsuch jumped the shark after he ruled that the Civil Rights Act really was intended to protect women who think they're men and men who like to play house and sodomize other dudes.

[Zarniwoop]

yes yes, we understand that you're repressed and desperately trying to prove your manly-hetero bona-fides to yourself by anonymously posting on the intarwebz.

[Zarniwoop]

The 12-person rule wasn’t merely a custom, it was a custom widely acknowledged as law ...

(emphasis added)

A fine example of the "proof by blatant assertion" method of constitutional interpretation. Props.

[The Margrave of Azilia]

I had assumed you read the dissent. As well as the authorities cited there.

[Zarniwoop]

I had assumed you read the dissent.

You lost me. Which dissent? There's no case cite in any of the parent comments to my comment (and your comment). The OK jurisdictional case, which as far as I know has nothing to do with "12 jurors, no more, no less" assertions?

I can't read your mind over the intarwebz.

[The Margrave of Azilia]

It's linked in the first sentence of the post.

[F.D. Wolf]

In Williams v. Florida (1970), the Court held that six jurors were enough. Eight years later, in Ballew v. Georgia (1978), the Court held that five jurors were not enough. In his concurrence in Ballew, Justice Powell (joined by Chief Justice Burger and Justice Rehnquist) wrote that the line between five and six was difficult to justify logically, but the Court had to draw a line somewhere, so here it is.

[The Margrave of Azilia]

Splitting the baby. Courtesy of Bob, Solomon's dumber cousin.

[David Nieporent]

Poor analogy. The Oklahoma reservations were creatures of statute, not custom. You can't repeal a statute with a custom.

In contrast, criminal juries pre-date any statutory enactments regarding their construction.

[Brett Bellmore]

Treaty, rather, not statute.

[Noorondoor]

https://storage.courtlistener.com/recap/gov.uscourts.nynd.134829/gov.uscourts.nynd.134829.78.0_1.pdf

If this case doesn't demonstrate why the entire "standing" doctrine needs to go, I don't know what does.

[Aladdin's Carpet]

Au Contraire, it demonstrates precisely why it is necessary.

[Noorondoor]

Nonsense. The idea that a law that restricts your carry permit isn't "harming" you unless you declare you intend to break the law is absurd. The mere existence on the books should be standing.

If this involved gay marriage or baby killing, no judge would require such rigorous "standing."

[Armchair Lawyer]

Realistically, the decision should be revisited. A jury of 6 being OK, but 5 being too little, makes little sense.

Practically...the court has bigger issues on its plate.

[Zarniwoop]

Realistically, the decision should be revisited. A jury of 6 being OK, but 5 being too little, makes little sense.

What’s to “revisit”? Powell seems pretty blunt about the fundamental bottom line of (paraphrased) “look you guys, we gotta draw a line somewhere, boom, here it is. Now stop bugging us.” I guess a new S.Ct. Can decide the line is really 5, or, 7, or whatever. But what’s the need to revisit the decision on the table?

Agree or disagree with the particular social science handwaving, and even if the line is arbitrary … some line needs to exist. And that’s been addressed already:

Ballew v. Georgia,435 U.S. 223 (1978):

MR. JUSTICE BLACKMUN, joined by MR. JUSTICE STEVENS, concluded that a criminal trial to a jury of less than six persons substantially threatens Sixth and Fourteenth Amendment guarantees. Georgia has presented no persuasive argument to the contrary. Neither the financial benefit nor the more dubious time-saving benefit claimed is a factor of sufficient significance to offset the substantial threat to the constitutional guarantees that reducing the jury from six to five would create. Pp. 435 U. S. 229-245.

MR. JUSTICE WHITE concluded that a jury of less than six would not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments. P. 435 U. S. 245.

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST joined, concluded that, though the line between five- and six-member juries is difficult to justify, a line has to be drawn somewhere if the substance of jury trial in criminal cases is to be preserved. Pp. 435 U. S. 245-246.

[ducksalad]

Question for those of you saying it doesn’t need to be twelve…. what exactly are the minimum requirements to satisfy the 6th and 14th amendments? Not talking about SC precedent, asking about your opinion of what the SC should enforce.

(a) Is there a minimum number? (b) Does it need to be unanimous; if not, is there some particular supermajority needed? (c) Can the state simply appoint professional jurors selected to convict, or does there need to be some process that denies them complete control over the membership? (d) Can the jury acquit on their own authority, or can the state make their role merely advisory? (E.g. interpret “by a jury” as “in the nearby presence of a jury”)

One would hope you think some the above should be enforced. But since it’s not in the text, what is your justification, and how is it different from Gorsuch’s?

I think Brett and others have the right idea: it meant something at the time of the 6th amendment, and that’s binding on the feds, and it meant something at the time of the 14th, and that’s binding on the states.

[Armchair Lawyer]

a) 6 is the minimum number
b) Yes, it needs to be unanimous
c) It needs to be a jury of "one's peers" typically. A "professional jury" would likely fail that qualification.
d) The jury can acquit for whatever reason it wants, including if it finds the law unjust. The role can't be "advisory". In certain cases, the decision can be appealed.

[ReaderY]

Twelve is a very special number. It’s the number of months of the year, the signs of the Zodiac, the Tribes of Israel, the Apostles. Sesame Street’s The Count, who never met a number he didn’t like, has some especially nice things to say about it. And 12 is the number of a jury in English common law.

But however magical and special the number 12 is, it’s not so magical and special as to be enshrined for all time as the number of people required for a jury. The Constitution says nothing about it the number.

Just as liberals need to be careful not to constitutionalize today’s hot ideas that they’re especially fond of, conservatives need to be careful not to constitutionalize ancient customs and magical numbers that they happen to be especially attached to.

[The Margrave of Azilia]

What makes this a conservative issue? Is some Trump administration official on trial by a 6-person jury or something? How is there a conservative-progressive division here?

Justice Thurgood Marshall dissented in the Williams case; he said "I believe that the Fourteenth Amendment guaranteed Williams a jury of 12 to pass upon the question of his guilt or innocence before he could be sent to prison for the rest of his life." Is Thurgood Marshall now a conservative?

“The Constitution says nothing about [] the number.”

It says “jury,” and Gorsuch marshals his authorities who say that 12 is *part* of the meaning of “jury.”

The 8th Amendment doesn’t say anything about boiling in oil either, but that doesn’t mean boiling in oil is a permissible punishment.

Magic and mystical are dismissive terms to justify throwing the accumulated wisdom of centuries into the trash.

And for what?

Studies (cited by Gorsuch) show that (duh!) minority-groups in a community are more likely to be called for service on a real jury (12 members) than on an ersatz “jury” of 6.

So if you’re white in a black community, or vice versa, you’re better off with 12. Suppose you’re black and the case turns on the credibility of cops who police the “black parts of town.” Wouldn’t you want a juror who knows something about the reliability of such cops, especially if that reliability is not good? Well, then, you’re more likely to get a black member on a *real* jury (12 people) than on a 6-person imitation “jury.”

[Brett Bellmore]

The Constitution fails to specify a huge range of things. Why, it doesn't even state that it's written in English, rather than Whoopsifarian, a synthetic language which just happens to look like English but have largely different word meanings.

Words are normally to be interpreted as meaning what they meant at the time of enactment, so as to avoid having an infinite regress of defining terms, then defining the terms used to define them, then defining THOSE terms...

[JasonT20]

Words are normally to be interpreted as meaning what they meant at the time of enactment

The problem with that is how confident you can be that you are correctly identifying the meaning of a word as it was used by the writer. For words written recently, you have current usage to go by, and perhaps you can even ask the author what they meant. The further you go back in history, the less certain you can be because you'll have a smaller and smaller sample of what people wrote and from a smaller sample of people to work from. That is why I don't accept the originalist position that we must go by any form of "original meaning". Taking the words as we use them now is perfectly reasonable, to me.

[The Margrave of Azilia]

Now, some context for the Williams opinion:

When the Court believed the 6th Amendment applied only to the feds, it upheld the 12-person definition sanctioned by the wisdom of generations.

A couple years before Williams, and overturning prior precedent, the Court said the states had to have jury trials, but didn’t go into detail.

In Williams, they could have (1) gone all the way and applied the 6th Amendment fully to the states, or (2) they could have said that the states could use a close-enough-for-government work version of the 6th Amendment requiring juries but allowing a smaller number than 12. Under this approach the feds would still be held to 12.

The first option would have upset the practices of those states with 6-person “juries.” The second would have freaked out those justices who believed in “incorporation” of the Bill of Rights against the states (and rightly freaked out, may I add, because the Bill of Rights IMHO are privileges and immunities of citizenship per the 14th Amendment).

They didn’t want to retrogress on incorporation, and they didn’t want to mess with those states which had 6-member “juries.”

So they solved both problems with option (3), which was (for the first time in their history) to redefine “jury” to include these 6-person bodies.

Of course it’s weird that they rewrote state laws in so many areas but blanched when it came to state laws allowing juries under 12.

Now both the states and the feds are empowered to use 6 or 8-person “juries,” thanks to this emasculation of the 6th Amendment.

[The Margrave of Azilia]

Again, I don’t buy this legislative-history nonsense.

Even if the Founders subjectively believed they were allowing nonunanimous juries, they chose to use a common-law term describing a 12-member body whose decisions have to be unanimous.

If they wanted to translate their (purely hypothetical) subjective intentions into law, they could have inserted a proviso allowing votes of 10-2 or what have you.

(And I wonder who would have gotten the short end of the stick if there were, say, a 10-2 split between white and black jurors and the defendant was black?)

Again, I don’t understand why the commenters are dividing into prog and conservative teams on this issue, with progs wanting smaller juries.

[The Margrave of Azilia]

Yes, I get it. “I’m passionate, you’re emotional. I’m principled, you’re rigid and ideological. I’m impartially interpreting the Constitution, you’re being results-oriented.”

Dismissing your rhetorical flourishes, we come to footnote 44:

“Similarly, the First Continental Congress resolved in October 1774:

“That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.”

“1 Journals of the Continental Congress 69 (C. Ford ed.1904) (emphasis added). And the Northwest Ordinance of 1787 declared that the inhabitants of that Territory should

“”always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury . . . and of judicial proceedings according to the course of the common law.”

“Ordinance of 1787, Art. II, 1 U.S.C. xxxviii (emphasis added). See Capital Traction Co. v. Hof, 174 U. S. 1, 174 U. S. 5-8 (1899) (concluding from these sources that the explicit reference to the “common law” in the Seventh Amendment, referred to the rules of the common law of England, not the rules as modified by local or state practice).”

The context was that if they’d wanted to incorporate the common-law meaning of “jury” they would have said so. This argument depends on the legislative history, especially the part where they replaced jury of the vicinage with jury of the state and district (the latter determined by Congress).

But that means the opposite of what you and White say.

When they wanted to *depart* from the usual incidents of trial by jury – in this case the requirement of trial in the vicinage – they used specific textual language to reflect that departure.

So the fact that they didn’t mention size or unanimity could more plausibly mean that they *kept* the definition of “jury” where it wasn’t superseded by the text (state/district rather than vicinage).

Again, I don’t care about “legislative history” – I mean, what if swing votes were cast by Senators so drunk they thought they were authorizing National Wig Day rather than approving the jury-trial language? I’m not into counting noses and trying to read the subjective intentions of the lawmakers in preference to the text of the laws they adopted.

[David Nieporent]

Odd thing to do if they were meaning those characteristics should be have been assumed to have been built into the term.

Not at all. If those are assumed to have been built in, then expressly itemizing those characteristics would be redundant — so they took them out.

(I mean, I don't know that to be the case, but it's at least as plausible as the alternate interpretation.)

[The Margrave of Azilia]

Again with what they “thought” – what if they *thought* the bill was about tariffs on cheese?

The opinion you’re defending includes this passage, which of course is what I’m responding to. If they can discuss it so can I:

“while, in theory, the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice, the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e.g., Carter v. Jury Commission, 396 U. S. 320, 396 U. S. 329-330 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.”

So not only does that open the door to discussion of the representation issue, it is outdated because it assumes preremptory strikes can be fully arbitrary, which thanks to Batson is no longer the case.

Do you really think they can discuss the issue but I can’t?

And are you calling Thurgood Marshall result-oriented for adhering the Court’s prior precedents on jury size?

What agenda am I serving by disagreeing with you on this issue? Perhaps I want to protect Trump from a 6-person jury? I can't even tell what you're claiming, I only know it's bullshit.

[The Margrave of Azilia]

“the drafting or debate history of the Amendment”

Means bupkis, plus the records are not complete enough to indicate exactly what they were thinking. Maybe they thought what the text indicates – that they rejected a jury of the vicinage in favor of different language because they feared that otherwise the vicinage requirement would be read into the jury clause.

Anyway, as my grandpappy used to say, “expressio unius est exclusio alterius.” What grandpappy was trying to get at was that if you specifically depart from the vicinage requirement, but say nothing about the other parts of a jury, you’re inferentially keeping those parts of the jury unimpaired. Or else they could have said “a jury of 6-12 members, which shall decide cases by a majority vote.”

You know what I think? Gorsuch said something, so to you it is probably wrong and you’re going with that.

Justice White raised the issue of “representation of every distinct voice in the community,” and I showed why I disagreed with his conclusion. For taking up the same topic as Justice White, I’m supposedly promoting…I dunno, MAGA or something.

And, yes, I am curious about how living-constitutional acolytes aren't trying to reinstate precedents which are more favorable to racial justice than the Williams decision.

[The Margrave of Azilia]

My revised draft said:

“You know what I think? Gorsuch said something, so to you it is probably wrong and you’re going with that.”

While I deleted the reference to projection, the legislative history of my comment indicates that I suspect this.

It took until Justice White for your crystal-ball reading of legislative intent to lead to this result.

Justice Story thought as I do, and he was closer to the framing.

The Supreme Court thought as I do in several decisions. So did state high courts.

States went below 12 at a time when they thought the 6th Amendment didn’t bind them. That was the basis on which their small-jury laws were upheld at first.

[The Margrave of Azilia]

It was actually the third, 1858, edition of Story's commentaries, perhaps inserted by some lesser person for all I know.

[JasonT20]

After reading an article I linked in a comment above, I've changed my thinking some on this thread. I never believed that less than 12 was a good idea or acceptable, I just was fairly reflexively annoyed with the proposition that 12 was required by the Constitution when it doesn't reference a number at all. I felt that way mostly because of how often conservatives whine about shit not being in the Constitution and liberal judges making stuff up that isn't there. It looked like blatant hypocrisy to me.

But, for once, a conservative jurist might actually have a valid point that the history really is on the side of something he is pushing. If that article and Gorsuch are correct that juries in criminal trials being 12 people, with unanimous verdicts, were virtually universally the norm, then it is reasonable to think that "jury" was synonymous with a 12-person panel when the 6th Amendment was written.

Now, that alone is not quite sufficient to demand that the Constitution be interpreted that way, since the text doesn't say 12. But there is plenty of good reason to think that 12 might be a sweet spot for protecting against group think and social pressure in the jury room while not being so large as to make it hard to find enough people to serve on juries.

Put the history and evidence-based reasoning together, and I think you have a valid argument for the 6th Amendment requiring a 12-person jury for any criminal offense that might result in a loss of liberty or substantial fine.