Gorsuch Unhappy Court Won't Rethink Jury Size Precedent

By Rose Krebs | May 28, 2024, 2:17 PM EDT ·

In a strongly worded dissent Tuesday, Justice Neil Gorsuch said the U.S. Supreme Court needs to rethink precedent that "made the unthinkable a reality" by permitting juries of fewer than 12 people to decide cases involving serious criminal offenses.

Justice Gorsuch diverged with the high court's denial of Natoya Cunningham's petition for a writ of certiorari over her criminal conviction, saying the court has "now twice turned away thoughtful petitions asking us to correct" its "mistake" in Williams v. Florida , a "revolutionary" 1970 decision "approving for the first time the use of 6-member panels in criminal cases."

In the case at issue, Cunningham appealed a conviction and eight-year prison sentence handed down by a six-person jury, the dissent said. Cunningham was convicted of aggravated battery, according to a lower court document. Cunningham was arrested on the felony charge in 2019, news reports at the time said.

"Florida does what the Constitution forbids because of us," Justice Gorsuch said in his dissent. "In Williams v. Florida, this court in 1970 issued a revolutionary decision approving for the first time the use of 6-member panels in criminal cases."

With the decision, "the court turned its back on the original meaning of the Constitution, centuries of historical practice, and a 'battery of this court's precedents,'" the justice wrote.

Before Williams, the court "had understood" that "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," the justice said, citing the high court's Thompson v. Utah decision from 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,'" Justice Gorsuch said, referring to comments made by Justice John Marshall Harlan II in the 1970 decision.

"Yet Williams made the unthinkable a reality," Justice Gorsuch wrote. "In doing so, it substituted bad social science for careful attention to the Constitution's original meaning."

The justice took aim at Williams' reliance on academic studies that "tepidly predicted that 6-member panels would 'probably' deliberate just as carefully as 12-member juries."

Those studies quickly came under fire and "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,'" Justice Gorsuch said, citing the court's 1978 decision, Ballew v. Georgia .

"Respectfully, we should have granted review in Ms. Cunningham's case to reconsider Williams," the justice said. "In the years since that decision, our cases have insisted, repeatedly, that the right to trial by jury should mean no less today, and afford no fewer protections for individual liberty, than it did at the nation's founding."

Justice Gorsuch said that the high court has repeatedly been warned about dangers of eroding "the jury trial right."

"Yet when called upon today to address our own role in eroding that right, we decline to do so," the justice said. "Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct our mistake in Williams."

The other denial, in 2022, involved a writ of certiorari petition over a conviction by an eight-member jury in Arizona, according to a court document. In his dissent in that case, Justice Gorsuch noted that "only 6 states, Arizona included, tolerate smaller panels — and it is difficult to reconcile their outlying practices with the Constitution."

"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," Justice Gorsuch said in Tuesday's dissent.

Cunningham filed her petition for a writ of certiorari in July 2023 after the District Court of Appeal of the State of Florida, Fourth District affirmed her conviction and sentence that April.

The Supreme Court also denied other similar petitions involving other Florida cases Tuesday, with Justice Gorsuch dissenting for the same reasons set out in Cunningham's case.

Counsel for Cunningham declined to comment. Counsel for Florida didn't immediately respond to a request for comment.

Cunningham is represented by Seth P. Waxman of WilmerHale and Paul Edward Petillo of the Office of the Public Defender in Florida.

Florida is represented by Henry Charles Whitaker of the Florida Attorney General's Office.

The case is Cunningham v. Florida, case number 23–5171, in the Supreme Court of the United States.

--Editing by Haylee Pearl.

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