Hoping for Three More Votes

Gorsuch: "If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be."

There has been much discussion of certworthiness of late. Should certworthiness play a role in granting emergency relief on the shadow docket? What about the sharp decline of cert grants? For one reason or another, the Court simply is getting more stingy with certiorari.

Justice Gorsuch's solo dissent from denial of cert in Cunningham v. Florida speaks to this frustration. For some time, Justice Gorsuch has objected to Williams v. Florida (1970), which reversed precedent, and upheld the constitutionality of a six-person jury. Justice Gorsuch dissented from denial of cert on this issue in Khorrami v. Arizona (2022). Justice Kavanaugh did not join Justice Gorsuch's dissent, but would have granted the petition.

But now in Cunningham, Justice Gorsuch is all alone, left to hope for three more votes. He wrote:

If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States fromrevising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers. If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.

I think it is fairly rare for a Justice to openly hope for three more votes in such explicit language. If I had to guess, Justices Alito and Barrett are not sold on the case. Indeed, like with the jury unanimity requirement, overruling Williams would raise the retroactivity question, as many convictions would be jeopardy. At present, at most, there are three votes for cert, and not enough for a grant. This issue will lay dormant for the foreseeable future.

Comments

[Joe_dallas]

Changing subject - Was this statement by the Judge in the trump trial actually stated by the judge?

Judge Instructs Jurors They Need Not Believe Trump Is Guilty To Convict Him https://buff.ly/3V2OkOm

[defaultdotxbe]

It’s the Babylon Bee (which is satire) so likely not enitely true.

The “kernel of truth” likely revolves around what the charges actually are. The 34 felonies would be 34 misdemeanors, except prosecutors assert the records were falsified to cover up another crime. In that respect Trump need not be convicted of the underlying crime to be guilty of the elevated charges, jurors need not even agree on what the underlying crime was, and possibly need not believe that Trump himself is even guilty of the underlying crime (only that he believed a crime was committed and was attempting to cover it up)

Edit: requisite IANAL, and smarter commentors than I will probably point out some glaring error in my analysis.

[Rev. Arthur L. Kirkland]

Legal analysis, Volokh Conspiracy-style!

(These right-wing law professors -- well, some are former professors -- don't seem much interested in the Trump litigation. Why not? Trump got your tongue?)

[David Nieporent]

Edit: requisite IANAL, and smarter commentors than I will probably point out some glaring error in my analysis.

No, actually, that's basically correct.

[Noscitur a sociis]

Yes, Joe_dallas. Everything in that article is completely true. And not only that, but the judge ordered them not to put it in the transcript, and ordered the media not to report on it! Thank goodness there's a still one real journalist out there willing to tell the truth.

[ObviouslyNotSpam]

Journalists wonder why they have credibility issues. Nobody gives the truth away for free--ask any lawyer.

[Magister]

Theodoric of York, Medieval Judge, seemed to be in agreement, although he also had trouble with the numbers before finally dismissing the whole idea.

[Sam Bankman-Fried]

George Zimmerman was acquitted largely because of a 6 person jury that was all women. So the prosecution did an awful job but the jurors still said they initially wanted to find Zimmerman guilty of something. So one plant was able to convince 5 other women to acquit…so if the plant was on a 12 person jury then she probably couldn’t have swayed all of them which most likely results in a mistrial and another prosecution with better prosecutors.

[loki13]

"Indeed, like with the jury unanimity requirement, overruling Williams would raise the retroactivity question, as many convictions would be jeopardy."

This is a little out of my area, so I am not saying anything definitive here... but is that true? Since Linkletter ('60s), retroactivity isn't a given.

In fact, wasn't there a decision recently (Vannoy?) where the Court basically cast doubt on retroactivity for a lot of decisions?

[Noscitur a sociis]

Correct, Edwards v. Vannoy concluded that overruled precedent on a very closely related issue (criminal jury unanimity) wouldn't apply retroactively, so it wouldn't be especially adventurous to hold that a putative 12 person jury requirement wouldn't apply retroactively either.

[Dilan Esper]

Whoa whoa whoa.

Retroactivity is governed by Teague v. Lane (Linkletter is generally now considered a really stupid Warren court decision, which it was), with the most recent change in Edwards being that there's not going to be any more "watershed rules".

A change in jury procedure doesn't change the nature of the offense or affect primary conduct, so it will not be retroactive as to habeas. It will however be retroactive as to direct review, so that any non-12 person jury cases not final at the time SCOTUS ruled will get reversed.

[JoeFromtheBronx]

If we are going to decide what jury rights should be protected by following the federal model, does Gorsuch support incorporating the Grand Jury Clause? What about the Seventh Amendment?

A single state (and Puerto Rico) had non-unanimous juries. Putting aside dealing with the other state that just ended that policy. More states have under 12-person juries (looks like six states).

[Bored Lawyer]

"does Gorsuch support incorporating the Grand Jury Clause"

Why would he?

[Noscitur a sociis]

Well, he did say this:

JUSTICE GORSUCH: I mean, most -- most of these incorporation cases took place in like the 1940s. And here we are in 2018 still litigating incorporation of the Bill of Rights. Really?Come on, General.

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1091_6c36.pdf

[Sam Bankman-Fried]

I still don’t understand why the 2A needed incorporation when it was drafted as an individual right unlike the rest of the BoR. Btw, which Americans were protected by the 2A prior to McDonald?? Obviously Scalia believed residents of DC were protected by the 2A because that’s where Heller lived. So Scalia must have believed it was an amendment specifically for citizens residing in DC and federal territories.

[David Nieporent]

I still don’t understand

True! But that's because you don't listen.

[The Margrave of Azilia]

If grand jurors are just a rubber stamp wielded against ham sandwiches, what’s the harm in requiring them for major crimes?

Unless we’re worried that somewhere there will be grand jurors who refuse to go along with the prosecutor? In that case we'll have to decide which is more important - empowering prosecutors or having more citizen input into the justice system and potentially protecting innocent people.

[Balisane]

What's the point of having them? It's a complete waste of time.

[Noscitur a sociis]

I think the main concerns are that grand jury incorporation would be:

1. Disruptive, since lots of states don’t have any recent experience using grand juries and would have to radically change their criminal procedure as well as figure out what to do about the retroactivity issue; and

2. Bad for criminal defendants, since it would surely mean jettisoning the more favorably preliminary hearing system in the jurisdictions that use them now.

Since the grand jury system looks very different (including how many people are on it!) in every jurisdiction that does use them, it would also force a lot of difficult questions about what the indispensable characteristics of a grand jury actually are, and how much room for variation and experimentation the fifth amendment actually permits.

[The Margrave of Azilia]

But, by what principle does the Court pick and choose which parts of the Bill of Rights are worthy of incorporation?

They used to say the self-incrimination clause - also the double jeopardy clause - could be safely ignored by the states. Likewise the jury clause and the Second Amendment, and so on.

The grand jury has been allowed to atrophy, but a good incorporationist opinion explaining the importance of the grand jury clause, and applying that clause to the states, could alert grand jurors - and judges - to the importance of the grand jury role.

[Ridgeway]

The argument is that the XIV Amdt only incorporates rights that are “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.”

I am not an expert on the history of GJs in the US, but it looks like lots of states do not use them (at least not exclusively). Given the leeway prosecutors have in a GJ system, it is easy to argue that non-GJ informations approved by a judge after a probable cause hearing are functionally equivalent to GJ indictments, so there is no derogation of ordered liberty in choosing one over the other.

[JoeFromtheBronx]

I don't understand the confusion. In his dissent in the case referenced, he cited federal cases on what a "jury" entailed.

He did the same with the unanimous jury provision.

He supported doing away with the dual sovereignty rule for double jeopardy.

It does look like he wants one rule for the Bill of Rights. Logically, it would seem he would support complete incorporation. This quote furthers the case.

[QuantumBoxCat]

In his dissent from denial of cert, Gorsuch writes:

Soon, the Court was forced to acknowledge “empirical data” suggesting that, in fact, “smaller juries are less likely to foster effective group deliberation” and may not produce as reliable or accurate decisions as larger ones. Ballew v. Georgia, 435 U. S. 223, 232–235 (1978) (plurality opinion).

This is a factually incorrect statement and demonstrates either an intent to mislead the reader or laziness in writing. The reporter lists the following breakdown of opinions in Ballew v. Georgia:

BLACKMUN, J., announced the Court’s judgment and delivered an opinion, in which STEVENS, J., joined. STEVENS, J., filed a concurring statement, post, p. 245. WHITE, J., filed a statement concurring in the judgment, post, p. 245. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 245. BRENNAN, J., filed a separate opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 246.

The quotation that Gorsuch uses from Ballew is from the lead opinion, which was authored by Blackmun and joined only by Stevens. Blackmun and Stevens are not “The Court.” The Court speaks through a majority of the justices, not through the opinion of just two justices. Obviously, it makes the argument sound stronger if the language is attributed to The Court as opposed to just two justices. But that doesn’t mean it’s accurate.

[Rev. Arthur L. Kirkland]

Either you're wrong, QuantumBoxCat, or Justice Gorsuch is every bit the corrupt, unreliable loser that his mother was.

[David Nieporent]

The Court speaks through a majority of the justices, not through the opinion of just two justices.

Dude, what do you think the word "plurality" means?

[Noscitur a sociis]

I think QuantumBoxCat is referring to Gorsuch saying, “Soon, the Court was forced to acknowledge ‘empirical data’ suggesting that, in fact, ‘smaller juries are less likely to foster effective group deliberation’ etc.”. Does seem more just Gorsuch’s normal poor writing than the any sort of malfeasance to me.

[santamonica811]

I'm genuinely surprised that the 3 liberals didn't sign on to this. I wonder why?

I think it's inescapable that: the fewer the jurors, the more likely it is to send people to prison. (Since you need only one juror to hang; you obviously have a better chance of finding that one out of a pool of 12, rather than a pool of 6.) In many cases; a hung jury is almost as good as an acquittal, as--outside of particularly notorious and/or heinous cases--a hung jury case will often not be retried.

Also, if some "let's lock 'em all up!" states can use a 6 person jury, then why not a 3-person or a 4-person jury? There's nothing magical about the number 6, after all. Just like there's nothing magical (other than a few centuries of precedent) about having 12 people. It's a particularly nasty slippery slope, I fear.

[The Margrave of Azilia]

[sarcastic comment deleted in hopes I can do my part to elevate the discourse]

[Noscitur a sociis]

In many cases; a hung jury is almost as good as an acquittal, as–outside of particularly notorious and/or heinous cases–a hung jury case will often not be retried.

I realize people say that, but what it’s worth, that hasn’t been my experience at all. Indeed, the top of my head, I can’t think of any cases that got dismissed after one hung jury (I can think of one that the prosecutor dismissed after two, and a handful where there was a more favorable plea agreement than previously available).

Also, if some “let’s lock ’em all up!” states can use a 6 person jury, then why not a 3-person or a 4-person jury?

Because the Supreme Court said you can’t go lower than 6. Ballew v. Georgia, 435 U.S. 223 (1978).

[David Nieporent]

I realize people say that, but what it’s worth, that hasn’t been my experience at all. Indeed, the top of my head, I can’t think of any cases that got dismissed after one hung jury

The John Edwards case is one that leaps immediately to mind for obvious reasons.

[Noscitur a sociis]

I was thinking of cases that I or people I know have been involved with, but fair enough.

[Darth Buckeye]

Well, after Biden is re-elected and the Dems keep the Senate and regain control of the House, they can ditch the filibuster and allow Biden to appoint as many new, woke justices as needed to guarantee Democrat/woke dominance. 4 extra justices? Maybe. Better play it safe and get 8 new justices all Ivy League educated and under the age of 30.

[Sarcastr0]

8 new Justices, all Oberlin class of 2018!

Each with hair pinker than the last.

It is ze dream...