Conservative U.S. Supreme Court Justice Neil Gorsuch on Tuesday urged six states to stop using juries with fewer than 12 people in some criminal trials as the high court declined to revisit a five-decade-old precedent allowing them to do so. Gorsuch lamented that the nine-member court lacked the four votes needed to hear an appeal questioning whether the U.S. Constitution bars juries with as few as six people from deciding felony cases.
“I can only hope someday there will be,” he wrote in dissent. However, Gorsuch emphasized that nothing prevents the six states allowing for juries with fewer than 12 jurors from changing their laws. These states—Arizona, Connecticut, Florida, Indiana, Massachusetts, and Utah—permit six- or eight-member juries.
A Florida woman, Natoya Cunningham, brought the appeal after a six-person jury convicted her of aggravated battery and retaliation against an informant to whom her nephew had sold crack cocaine. The court sentenced her to eight years in prison. Cunningham’s lawyer, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, did not respond to a request for comment.
Cunningham argued that the U.S. Supreme Court should hear her case to decide whether using fewer than 12 jurors in her trial infringed her right to an impartial jury, violating the U.S. Constitution’s Sixth and Fourteenth Amendments. Her lawyers contended that six-member juries are less likely to be representative and reliable than 12-member bodies, and that historical evidence suggested the Sixth Amendment, since its ratification in 1791, required 12-member juries.
Gorsuch and conservative Justice Brett Kavanaugh had previously signaled interest in this issue in 2022. On Tuesday, Gorsuch stated that the court should have used Cunningham’s case to overturn Williams v. Florida, a 1970 case in which the Supreme Court ruled that the Sixth Amendment does not require 12-member juries. He described that ruling as an “embarrassing mistake” that “turned its back on the original meaning of the Constitution” by relying on studies that have since been undermined, concluding that six-member juries were as likely to deliberate carefully as 12-member ones.
Gorsuch insisted that if the court would not correct its error, then the states that have relied on Williams to use smaller juries should change their laws. “If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so,” he wrote. “For, no less than this Court, the American people serve as guardians of our enduring Constitution.”
