The Roberts Court has been rightly criticized for being too quick to overrule existing precedent. But in one area in which correction is truly needed, it has been oddly slow to do so: the Sixth Amendment’s jury trial right.  For the second time in less than a month, the Court has declined to consider a fundamental question of Sixth Amendment rights, thereby letting stand two old precedents that are inconsistent, in both reasoning and result, with the Court’s more recent Sixth Amendment decisions.   

Earlier this week, the Court denied review in Irving v. Florida, a case presenting the question whether juries composed of fewer than twelve members violate the Sixth Amendment.  A few weeks ago, the Court denied review in Jackson v. Louisiana, a case presenting the question whether non-unanimous jury verdicts violate the Sixth Amendment as it applies to the states.  In both instances, the Court was asked to hear the cases and overrule 40-year-old precedents that narrowly construed the scope of the jury right.  The Court’s decision to deny review in these cases is particularly distressing given the consequence: Americans continue to be denied the full protections of the constitutional right to a jury trial—a right of crucial importance to the Founders.  The denial of review is also surprising given that, in the years since those 40-year-old precedents were decided, the Court has repeatedly repudiated both their rationales and their outcomes.

In 1970, in Williams v. Florida, the Supreme Court held that the Sixth Amendment does not require twelve-member juries.  The Court acknowledged that “sometime in the 14th century the size of the jury at common law came to be fixed generally at 12,” but it rejected the relevance of that history.  According to the Court, “the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.”  In 1972, in Apodaca v. Oregon, the Court held that the Sixth Amendment does not require unanimous jury verdicts in state court.  A plurality of the Court took the same dismissive approach to the Constitution’s history, concluding that the meaning of the Sixth Amendment should turn not on practices as they existed at common law, but rather on “the function served by the jury in contemporary society.”  (Oddly enough, five justices on the Apodaca Court thought that history was relevant to determining whether the Sixth Amendment requires jury unanimity, but those five votes weren’t enough to carry the day.  For an explanation of why, see here.) 

These decisions were wrong in rejecting the relevance of the Constitution’s history in determining its meaning.  The modern Court itself has said so, and it has said so repeatedly.  In 2000, in Apprendi v. New Jersey, the Court recognized that “the historical foundation for our recognition of [the rights in the Sixth Amendment] extends down centuries into the common law,” and it is thus appropriate to look to the common law as it existed at the Framing to determine how the Sixth Amendment’s guarantee should apply in the context of sentencing.  Repeatedly since then, the Court has made the exact same point about the Sixth Amendment, explaining in Giles v. California (2008) that the Sixth Amendment “seeks fairness . . . through very specific means . . . that were the trial rights of Englishmen,” and in Blakely v. Washington (2004) that what matters is the “Framers’ paradigm for criminal justice.”  Yet despite recognizing the importance of history in interpreting the Sixth Amendment, the Court has decided to let two old decisions stand that explicitly rejected the relevance of history.  That’s pretty bad.

And what makes the Court’s inaction especially appalling here is that the Court has already acknowledged what that history tells us:  the Sixth Amendment requires unanimity, and it requires twelve-member juries.  In Apprendi, in the course of deciding another issue, the Court noted that “trial by jury has been understood to require that ‘the truth of every accusation, . . . should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours.’”  Four years later, in Blakely, it said the same thing.  And a year later, it said essentially the same thing in Booker v. United States.  Nonetheless, by denying review in Irving and Jackson, the Court has allowed constitutional violations that directly infringe upon individual liberty to continue.  The petitioner in Jackson, for example, is serving life in prison at hard labor, without possibility of parole, even though the prosecution could not convince all the members of his jury that he was guilty. 

The Court’s unwillingness to revisit these two Sixth Amendment decisions—Williams and Apodaca—when they are so at odds with the rest of its Sixth Amendment case law and the Constitution itself makes little sense, especially given that they involve a constitutional right that is, in the Court’s own words, of “surpassing importance.”  It’s clearly not because the Court is too busy with other matters: this year, the Court heard roughly 70 cases, when not that long ago, it used to hear twice that many.  Perhaps the Court is simply exhibiting an uncharacteristic hesitance about overruling its own precedents.  But if that’s what’s going on, it’s time for the Court to recognize that these are two cases it should overrule.