Khorrami v. Arizona

1 Cite as: 598 U. S. ____ (2022)
G
ORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
RAMIN KHORRAMI v. ARIZONA
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
APPEALS OF ARIZONA
, DIVISION ONE
No. 21–1553. Decided November 7, 2022
The petition for a writ of certiorari is denied.
J
USTICE KAVANAUGH would grant the petition for a writ
of certiorari.
J
USTICE GORSUCH, dissenting from the denial of certio-
rari.
The State of Arizona convicted Ramin Khorrami of seri-
ous 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 guaran-
tee individuals like him a trial before 12 members of the
community. The Arizona Supreme Court rejected the ap-
peal, 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. Id., at 86. 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.
*
Presently, the laws in 44 States entitle individuals
charged with serious crimes to a trial before a 12-member
jury. Only 6 States, Arizona included, tolerate smaller pan-
els—and it is difficult to reconcile their outlying practices
with the Constitution. The Sixth Amendment protects the

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G
ORSUCH, J., dissenting
“right to a speedy and public trial, by an impartial jury.”
And a mountain of evidence suggests that, both at the time
of the Amendment’s adoption and for most of our Nation’s
history, the right to a trial by jury for serious criminal of-
fenses meant a trial before 12 members of the community—
nothing less.
Start with this. We often say that “[t]he interpretation of
the Constitution of the United States is necessarily influ-
enced by the fact that its provisions are framed in the lan-
guage of the English common law, and are to be read in the
light of its history.” Smith v. Alabama, 124 U. S. 465, 478
(1888). And while scholars may debate the precise moment
when the common-law jury came to be fixed at 12 members,
this much is certain: By the time of the Sixth Amendment’s
adoption, the 12-person criminal jury was “an institution
with a nearly four-hundred-year-old tradition in England.”
R. Miller, Comment, Six of One Is Not a Dozen of the Other:
A Reexamination of Williams v. Florida and the Size of
State Criminal Juries, 146 U. Pa. L. Rev. 621, 643 (1998)
(Miller). 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 Com-
mentaries on the Laws of England 343. In the 1790s, James
Wilson, both a framer of the Constitution and a Justice of
this Court, explained the common-law rule this way: “[T]he
unanimous sentiment of the twelve jurors is of indispensa-
ble necessity” to “the conviction of a crime.” Of Juries, in 2
Collected Works of James Wilson 985 (K. Hall & M. Hall
eds. 2007).
From the moment it was adopted, the Sixth Amendment
was widely understood to protect this ancient right. In the
first few decades following the Amendment’s ratification, a
“flurry” of state courts interpreted the phrase “trial by an
impartial jury” to require the use of a 12-person panel. Mil-
ler, 643, and n. 133 (collecting cases). A host of state courts

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G
ORSUCH, J., dissenting
pursued the same understanding through the balance of the
19th century. Pet. for Cert. 11–12 (collecting cases). The
third edition of Story’s Commentaries on the Constitution
likewise stated that “[a] trial by jury is . . . a trial by a jury
of twelve. . . . Any law therefore, dispensing with [this] req-
uisit[e] may be considered unconstitutional.” 2 Commen-
taries on the Constitution of the United States §1779, p.
588, and n. 3 (3d ed. 1858) (second emphasis in original).
Later American treatises echoed the same refrain. One
said that a criminal jury means “a body of twelve. . . . Any
less than this number of twelve would not be a common-law
jury, and not such a jury as the [C]onstitution preserves to
accused parties.” T. Cooley, Constitutional Limitations 319
(1868). Another observed that “[a] jury of less than twelve
. . . is not a jury; and a statute authorizing a jury of less, in
a case in which the Constitution guarantees a jury trial, is
void.” 1 J. Bishop, Criminal Procedure §897, p. 545 (2d ed.
1872). A third taught that, “where the record shows that
the cause was tried by a jury of less than twelve men, the
trial will be held to be a nullity.” S. Thompson & E. Mer-
riam, Organization, Custody and Conduct of Juries §6, p. 6
(1882).
Nor was this view confined to lower courts and commen-
tators. This Court first addressed the question of jury com-
position in 1898 when it overturned an 8-person verdict
from Utah. Thompson v. Utah, 170 U. S. 343. Speaking for
the Court, Justice Harlan could not have been plainer:
“[T]he 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, neither more nor less.” Id.,
at 349. In support of his conclusion, Justice Harlan
stressed that “the words ‘trial by jury’ were placed in the
Constitution of the United States with reference to the
meaning affixed to them in the law as it was in this country
and in England at the time of the adoption of that instru-
ment.” Id., at 350.

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ORSUCH, J., dissenting
A year later the Court returned to the area adding that a
trial by jury “in the primary and usual sense of the term at
the common law and in the American constitutions, is . . . a
trial by a jury of twelve.” Capital Traction Co. v. Hof, 174
U. S. 1, 13 (1899). A year later still, the Court professed “no
doubt” that “a jury composed, as at common law, of twelve
jurors was intended by the Sixth Amendment.” Maxwell v.
Dow, 176 U. S. 581, 586 (1900). Five years after that, the
Court repeated and reaffirmed Thompson’s holding that the
Sixth Amendment guarantees “‘the right to be tried by a
jury of twelve.’” Rassmussen v. United States, 197 U. S.
516, 527 (1905).
By 1930, the Court declared that it was “not open to ques-
tion” that the right to trial by jury for serious criminal of-
fenses “means a trial by jury as understood and applied at
common law,” including the element that it “should consist
of twelve” members. Patton v. United States, 281 U. S. 276,
288. Nor was the Court open to even slight deviations from
this rule: “To uphold the voluntary reduction of a jury from
twelve to eleven upon the ground that the reduction—
though it destroys the jury of the Constitution—is only a
slight reduction, is not to interpret that instrument, but to
disregard it.” Id., at 292. In 1968, the Court seemingly
acknowledged all this, quoting Blackstone once more for the
principle that “‘the truth of every accusation’” must be
proved to “‘twelve of [the accused’s] equals and neigh-
bours.’” Duncan v. Louisiana, 391 U. S. 145, 151–152.
*
Decided against this backdrop, Williams was an anomaly
the day it issued in 1970. The decision upheld a Florida law
permitting the use of 6-member juries in cases involving se-
rious criminal accusations. In doing so, the decision contra-
vened the Sixth Amendment’s original meaning and hun-
dreds of years of precedent in both common-law courts and
this one. Nor are the three most essential moves Williams
made to reach its result remotely persuasive.

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ORSUCH, J., dissenting
First, Williams sought to sidestep any serious inquiry
into the “‘intent of the Framers’” of the Sixth Amendment
on the ground that their motivations were an “elusive
quarry.” 399 U. S., at 92. To prove its point, Williams ob-
served that James Madison’s initial draft guaranteed a jury
trial with its “‘accustomed requisites,’” but the Senate later
dropped this qualifying language. Id., at 94–95. According
to the Williams majority, Madison’s draft surely would have
carried with it a guarantee of a 12-member jury, for that
was an “accustomed requisite” of criminal trials at common
law. Id., at 95–96. But the Senate’s editorial change made
it at least “plausible” to infer that some Senators may have
“intended” to abandon the traditional 12-person rule. Id.,
at 97.
This argument proves too much. Even Williams acknowl-
edged that the bit of drafting history it cited might just as
easily support the opposite inference it drew. After all, it is
equally possible from all we know that Senators omitted the
phrase “accustomed requisites” because they understood
the right to trial by jury as a trial before 12 members of the
community and saying anything more risked confusion or
surplusage. Ibid.; see also Ramos v. Louisiana, 590 U. S.
___, ___ (2020) (slip op., at 12). Recognizing this point, we
have since explained that, “rather than dwelling on text
[the Senate] left on the cutting room floor, we are much bet-
ter served by interpreting the language Congress retained
and the States ratified.” Ramos, 590 U. S., at ___ (slip op.,
at 12). And when it comes to that question, the answer is
not nearly so elusive. Whatever the private intentions of
the Senate editors, plenty of evidence exists about the orig-
inal public meaning of the Sixth Amendment—and that ev-
idence strongly indicates that the right to criminal trial by
jury meant nothing less than a trial before 12 members of
the community.
Second, Williams not only had to sidestep evidence of
original meaning to reach its result, it also had to find some

6 KHORRAMI v. ARIZONA
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ORSUCH, J., dissenting
way around a battery of this Court’s precedents stretching
from 1898 to 1968. To accomplish that, Williams tersely
dismissed the teachings of all these cases as “dict[a].” 399
U. S., at 91–92. But that move, too, undersells history. As
we’ve seen, long before Williams this Court stated unequiv-
ocally 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.” Thompson, 170 U. S.,
at 349. This Court expressed “no doubt” that the Sixth
Amendment right to a trial by jury means “a jury composed,
as at common law, of twelve.” Maxwell, 176 U. S., at 586.
The Court did not consider the matter “open to question.”
Patton, 281 U. S., at 288. To the contrary, the Court said
that even “slight reduction[s]” in the size of juries would not
be consistent with a fair “interpret[ation]” of the Sixth
Amendment but amount to a “disregard [of] it.” Id., at 292.
As Justice John Marshall Harlan II highlighted in his sep-
arate writing in Williams, this extensive line of decisions
long ago liquidated the meaning of the Sixth Amendment:
“[B]efore today it would have been unthinkable to suggest
that the Sixth Amendment’s right to a trial by jury is satis-
fied” by anything less than trial before a panel of 12 mem-
bers. Id., at 122 (Harlan, J., concurring opinion).
Third, after giving short shrift to original meaning and
precedent, Williams still had to construct an affirmative
case for permitting 6-member juries. To do so, Williams
first posited that the ancient 12-member jury rule “rest[s]
on little more than mystical or superstitious insights.” Id.,
at 88. Next, Williams suggested that 6-member juries
would “probably” function just as well when it comes to en-
suring thoughtful “group deliberation . . . and . . .
provid[ing] a fair possibility for obtaining a representative
cross-section of the community.” Id., at 100. Even Williams
had to concede, however, that “few experiments” and little
evidence existed to support its claims. Id., at 101. In the

7 Cite as: 598 U. S. ____ (2022)
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ORSUCH, J., dissenting
end, the best Williams could say was that, as of 1970, “nei-
ther currently available evidence nor theory” had yet
proved that a 12-person jury “is necessarily more advanta-
geous” than a 6-member panel. Id., at 101–102.
None of this supplies a sound basis for judicial tinkering
with an ancient tradition. As the Court in Patton wrote al-
most a century ago, “[i]t is not our province to measure the
extent to which the Constitution has been contravened and
ignore the violation, if in our opinion, it is not, relatively, as
bad as it might have been.” 281 U. S., at 292. Or as we put
the point more recently: “When the American people chose
to enshrine [the jury trial] right in the Constitution, they
weren’t suggesting fruitful topics for future cost-benefit
analyses. They were seeking to ensure that their children’s
children would enjoy the same hard-won liberty they en-
joyed.” Ramos, 590 U. S., at ___ (slip op., at 15). “As judges,
it is not our role to reassess whether” the same jury-trial
right that Americans enjoyed at the founding “is ‘important
enough’ to retain. With humility, we must accept that th[e]
right may serve purposes evading our current notice. We
are entrusted to preserve and protect that liberty, not bal-
ance it away aided by no more than social statistics.” Ibid.
Even taken on their own terms, Williams’s functionalist
claims have not aged well. Before the ink dried on the de-
cision, scholars began criticizing Williams for overreading
the handful of studies it cited to support its tepid assertion
that 6-member panels would “probably” operate as well as
12-member juries. See, e.g., H. Zeisel, . . . And Then There
Were None: The Diminution of the Federal Jury, 38 U. Chi.
L. Rev. 710, 712–715 (1971). And just 8 years later in
Ballew v. Georgia, 435 U. S. 223 (1978), this Court found
itself confronted with more “recent empirical data.” Id., at
232–33. As Ballew acknowledged, this new data did sug-
gest that “smaller juries are less likely to foster effective
group deliberation,” and did “raise doubts about the accu-
racy of the results achieved by . . . smaller panels.” Id., at

8 KHORRAMI v. ARIZONA
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ORSUCH, J., dissenting
232–234. As Ballew admitted, this new data also suggested
that “as juries become smaller” the “variance [redounds] to
the detriment of one side, the defense.” Id., at 236. Smaller
juries, too, this new research found, are less likely to in-
clude members of “minority groups,” and thus threaten to
deprive defendants of a fair possibility of obtaining a jury
composed of a representative cross-section of the commu-
nity. Id., at 236–237. While Ballew declined to overrule
Williams outright, it refused to extend the decision to per-
mit the use of 5-member juries—and in the process it effec-
tively undermined the entire functionalist rationale on
which Williams rested.
An array of studies in the years since Ballew has done
more of the same. These studies suggest that 12-member
juries deliberate longer, recall information better, and pay
greater attention to dissenting voices. See, e.g., M. Saks &
M. Marti, A Meta-Analysis of the Effects of Jury Size, 21
Law & Hum. Behav. 451, 455–466 (1997). This research
continues to suggest that smaller juries are less likely to
include minorities. See, e.g., id., at 455—457; S. Diamond,
et al., Achieving Diversity on the Jury: Jury Size and the
Peremptory Challenge, 6 J. Empirical Legal Studies 425,
442 (2009) (summarizing the results of one study: “While
28.1 percent of the six-member juries lacked even one black
juror, only 2.1 percent of the 12-member juries were en-
tirely without black representation”). And this research
suggests that the absence of minorities can have a striking
effect on outcomes. According to one study, “there is a sig-
nificant gap in conviction rates for black versus white de-
fendants when there are no blacks in the jury pool,” while
“the gap in conviction rates for black versus white defend-
ants is eliminated” when there is at least one black member
of the jury pool. S. Anwar, et al., The Impact of Jury Race
in Criminal Trials, 127 Q. J. Econ. 1017, 1019–1020, 1034–
1035 (2012); see also S. Sommers & P. Ellsworth, How
Much Do We Really Know About Race and Juries? A Review

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ORSUCH, J., dissenting
of Social Science Theory and Research, 78 Chi.-Kent L. Rev.
997, 1028–1029 (2003) (discussing an experiment showing
that “White jurors on racially mixed juries were less likely
to vote to convict [a] Black defendant than White jurors on
all-White juries”).
Nor should we need a barrage of statistical studies to tell
us this much. During the Jim Crow era, some States re-
stricted the size of juries and abandoned the demand for a
unanimous verdict as part of a deliberate and systematic
effort to suppress minority voices in public affairs. See, e.g.,
La. Const., Art. 116 (1898); Ramos, 590 U. S., at ___, (slip
op., at 1–3) (observing that the 1898 Louisiana Constitution
allowed 5-member juries and nonunanimous verdicts
alongside “a poll tax, a combined literacy and property own-
ership test, and a grandfather clause that in practice ex-
empted white residents from the most onerous of these re-
quirements”); S. C. Const. Art. III, §1 (1865) and 1866 S. C.
Sess. Laws 493, §3 (providing for 8-member juries in dis-
trict courts, which have jurisdiction over “all criminal cases
wherein the accused is a person of color”). To be sure, some
States have adopted smaller criminal juries for different
reasons. Arizona, for example, may have been trying to cut
costs when it adopted its law permitting 6-member juries in
1972 shortly after this Court decided Williams. See S. Dia-
mond & A. Ryken, The Modern American Jury: A One Hun-
dred Year Journey, 96 Judicature 315, 318 (2013). But the
reality that smaller panels tend to skew jury composition
and impair the right to a fair trial is no new insight. It is
sad truth borne out by hard experience.
*
For almost all of this Nation’s history and centuries be-
fore that, the right to trial by jury for serious criminal of-
fenses 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 parad-

10 KHORRAMI v. ARIZONA
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ORSUCH, J., dissenting
ing as law. That mistake continues to undermine the integ-
rity of the Nation’s judicial proceedings and deny the Amer-
ican people a liberty their predecessors long and justly con-
sidered 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.