Supreme Court Justice Neil Gorsuch admonished his colleagues on Tuesday for turning down an opportunity to revoke the use of six-member jury panels in criminal cases, Courthouse News reports. “Florida does what the Constitution forbids because of us,” the Donald Trump appointee wrote, speaking of the high court, in a dissenting opinion. Gorsuch was hoping to overturn Williams v. Florida, which held that 12-member juries were not a constitutional requirement in criminal cases. Gorsuch said the court has consistently held that the right to trial by a jury should mean the same thing today as it did during the founding era and warned of the dangers of eroding that right. “Yet when called upon today to address our own role in eroding that right, we decline to do so,” Gorsuch wrote. “Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct our mistake in Williams.”
As in 1970, the current case also stemmed from Florida, where a court used a six-member jury to send Natoya Cunningham to prison for eight years for aggravated battery and retaliation against a witness. Cunningham urged the court to overturn Williams, arguing that six-member juries violated the Sixth Amendment. Citing Gorsuch’s prior opinions, Cunningham tied smaller juries to efforts to suppress minority voices in the Jim Crow era. In his current dissent, Gorsuch said Williams was an embarrassing mistake and the court should have taken up Cunningham’s appeal to correct its error. He cited a study showing that smaller juries "may not produce as reliable or accurate decisions as larger ones." Despite Cunningham’s plea, however, Gorsuch said there were not four votes from the court to take up the case. Without assistance from his colleagues, Gorsuch called on the public to advocate for the right to an impartial jury of 12 peers. “If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so,” Gorsuch wrote. “For, no less than this court, the American people serve as guardians of our enduring Constitution.” The court did not explain its decision not to hear Cunningham’s case. There were no other dissents.
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