Justice Gorsuch dissents from cert denial in case contesting SCOTUS precedent allowing six-member criminal juries

Today’s order list from the Supreme Court has one (non-criminal) grant of certiorari as well as one opinion dissenting from a (criminal) denial of certiorari.  This opinion, in Cunningham v. Florida, No. 23–5171, was authored by Justice Gorsuch, and jury-trial fans will want to read all three pages.  Here is how it starts and ends:

“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.” Khorrami v. Arizona, 598 U.S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9).  Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations.  See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.

Florida does what the Constitution forbids because of us.  In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U.S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6)….

Respectfully, we should have granted review in Ms. Cunningham’s case to reconsider Williams. 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.  See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); Ramos v. Louisiana, 590 U. S. 83 (2020).  Repeatedly, too, our cases have warned of the dangers posed by the gradual “‘erosion’” of the jury trial right.  Apprendi, 530 U.S., at 483 (quoting Jones v. United States, 526 U.S. 227, 248 (1999)). Yet when called upon today to address our own role in eroding that right, we decline to do so. Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct ourmistake in Williams.  See Khorrami, 598 U.S., at ___ (slip op., at 10).

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 from revising 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.