Cunningham v. Florida

1 Cite as: 602 U. S. ____ (2024)
G
ORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
NATOYA CUNNINGHAM v. FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT
COURT OF APPEAL OF FLORIDA
, FOURTH DISTRICT
No. 23–5171. Decided May 28, 2024
The petition for a writ of certiorari is denied.
J
USTICE GORSUCH, dissenting from the denial of certio-
rari.
“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.” Khorrami v. Arizona, 598 U. S. ___, ___ (2022)
(G
ORSUCH, 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 revolu-
tionary decision approving for the first time the use of 6-
member panels in criminal cases. 399 U. S. 78, 103. In do-
ing so, the Court turned its back on the original meaning of
the Constitution, centuries of historical practice, and a “bat-
tery of this Court’s precedents.” Khorrami, 598 U. S., at ___
(slip op., at 6). Before Williams, this Court had said it was
“not open to question” that a jury “should consist of twelve.”
Patton v. United States, 281 U. S. 276, 288 (1930). We had
understood “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 v. Utah, 170

2 CUNNINGHAM v. FLORIDA
G
ORSUCH, J., dissenting
U. S. 343, 349 (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. Williams, 399 U. S., at
122 (Harlan, J., concurring in result).
Yet Williams made the unthinkable a reality. In doing
so, it substituted bad social science for careful attention to
the Constitution’s original meaning. Pointing to academic
studies, Williams tepidly predicted that 6-member panels
would “probably” deliberate just as carefully as 12-member
juries. 399 U. S., at 100–102. But almost before the ink
could dry on the Court’s opinion, the social science studies
on which it relied came under scrutiny. See, e.g., H. Zeisel,
. . . And Then There Were None: The Diminution of the
Federal Jury, 38 U. Chi. L. Rev. 710, 713–715 (1971). Soon,
the Court was forced to acknowledge “empirical data” sug-
gesting that, in fact, “smaller juries are less likely to foster
effective group deliberation” and may not produce as relia-
ble or accurate decisions as larger ones. Ballew v. Georgia,
435 U. S. 223, 232–235 (1978) (plurality opinion). All in all,
Williams was an embarrassing mistake—“wrong the day it
was decided.” Khorrami, 598 U. S., at ___ (slip op., at 1).
Respectfully, we should have granted review in Ms. Cun-
ningham’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. Ap-
prendi, 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 our

3 Cite as: 602 U. S. ____ (2024)
G
ORSUCH, J., dissenting
mistake 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 pre-
vents 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 unani-
mous 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 Con-
stitution.