Amicus Curiae Brief — Mark Todd Minor, Petitioner v. Florida

No. 24-7489

IN THE

Supreme Court of the United States

__________

MARK TODD MINOR,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

__________

On Petition for a Writ of Certiorari

to the Fourth District Court of Appeal of Florida

__________

BRIEF OF

AMERICAN CIVIL LIBERTIES UNION,

AMERICAN CIVIL LIBERTIES UNION OF FLORIDA,

AND THE RUTHERFORD INSTITUTE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

__________

CECILLIA D. WANG

EVELYN DANFORTH-SCOTT

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street

Suite 700

San Francisco, CA 94104

YASMIN CADER

BRANDON BUSKEY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

DANIEL TILLEY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

FLORIDA

4343 W. Flagler Street

Suite 400

Miami, FL 33134

ALEJANDRA ÁVILA

Counsel of Record

ANNAMARIA M. MORALES-KIMBAL

NATALIE E. GIOTTA

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

(aavila@kellogghansen.com)

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

August 25, 2025

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 2

ARGUMENT ............................................................... 3

The Original Meaning of “Jury,” as the Term

Was Enshrined in the Constitution, Is a

Body with Twelve Members .................................. 3

A. Under English Common Law, a “Jury”

Had Twelve Members ...................................... 4

B. When the Constitution Was Ratified,

Americans Likewise Understood the

Term “Jury” To Mean a Group of Twelve ....... 8

C. Post-Ratification Cases and Treatises

Demonstrate the Term “Jury” Was

Originally Understood To Carry Its

Common-Law Meaning—a Body of

Twelve Members ............................................ 11

D. Twelve-Member Juries Fulfilled the

Historical Purpose of the Jury Right .............. 17

E. This Court’s Precedents Recognize the

Original Meaning of “Jury” Is a Body of

Twelve............................................................. 20

CONCLUSION.......................................................... 21

ii

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 4, 20

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n, 576 U.S. 787 (2015) ......... 6

Ballew v. Georgia, 435 U.S. 223 (1978) ...............18, 19

Blakely v. Washington, 542 U.S. 296 (2004) ............ 17

Bowles v. State, 37 Tenn. 360 (1858) ....................... 13

Briant v. Russel, 2 N.J.L. 146 (1806) ....................... 15

Brown v. State, 8 Blackf. 561 (Ind. 1847) ................ 13

Burk v. State, 2 H. & J. 426 (Md. 1809) ................... 14

Byrd v. State, 2 Miss. 163 (1834).............................. 13

Cancemi v. People, 18 N.Y. 128 (1858) ..................... 14

Capital Traction Co. v. Hof, 174 U.S. 1 (1899) ........ 20

Carpenter v. State, 5 Miss. 163 (1839) ................12, 19

Chiafalo v. Washington, 591 U.S. 578 (2020) ............ 4

Cowles v. Buckman, 6 Iowa 161 (1858) .................... 13

Cunningham v. Florida, 144 S. Ct. 1287 (2024) ........ 4

District of Columbia v. Heller, 554 U.S. 570

(2008) ..................................................................... 6

Dixon v. Richards, 3 Miss. 771 (1838) ..................... 14

Doebler v. Commonwealth, 3 Serg. & Rawle 237

(Pa. 1817) ............................................................. 13

Edwards v. Vannoy, 593 U.S. 255 (2021) .................. 3

Erlinger v. United States, 602 U.S. 821 (2024) ...2, 7, 9,

17, 18, 21

iii

Flowers v. Mississippi, 588 U.S. 284 (2019) ............ 17

Foote v. Lawrence, 1 Stew. 483 (Ala. 1828) .............. 14

Free Speech Coal., Inc. v. Paxton, 145 S. Ct. 2291

(2025) ..................................................................... 3

Grayson v. Cummins, Dallam 391 (Tex. 1841) ........ 14

Haaland v. Brackeen, 599 U.S. 255 (2023) ................ 3

Hemphill v. New York, 595 U.S. 140 (2022) .............. 3

Holmes v. Walton (N.J. 1780) ..................................... 9

Jackson v. State, 6 Blackf. 461 (Ind. 1843) .............. 13

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507

(2022) ..................................................................... 3

Khorrami v. Arizona, 143 S. Ct. 22 (2022) .........3, 4, 7,

8, 11, 18

Klein, In re, 14 F. Cas. 719 (D. Mo.) (No. 7,866),

rev’d, 42 U.S. (1 How.) 277 (C.C.D. Mo. 1843)

(No. 7,865) ............................................................ 14

Larillian v. Lane & Co., 8 Ark. 372 (1848) .............. 12

Maxwell v. Dow, 176 U.S. 581 (1900) ....................... 20

NLRB v. Noel Canning, 573 U.S. 513 (2014) ............. 6

Norval v. Rice, 2 Wis. 22 (1853) ............................... 14

Opinion of Justices, 41 N.H. 550 (1860)..............13, 14

Parker v. Gladden, 385 U.S. 363 (1966)................... 19

Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017) .......19

Pettis v. Warren, 1 Kirby 426 (Conn. Super. Ct.

1788)..................................................................... 19

Ramos v. Louisiana, 590 U.S. 83 (2020) ............2, 4, 9,

17, 18, 20

iv

Rassmussen v. United States, 197 U.S. 516 (1905) ....... 20

Respublica v. Oswald, 1 U.S. 319 (Pa. 1788) ............. 8

Southern Union Co. v. United States, 567 U.S.

343 (2012) .............................................................. 4

State v. Burket, 9 S.C.L. 155 (S.C. Const. Ct.

App. 1818) ............................................................ 14

State v. Mansfield, 41 Mo. 470 (1867) ...................... 15

State v. Meyers, 68 Mo. 266 (1878) ........................... 13

State v. Parkhurst, 9 N.J.L. 427 (1802) ..................... 9

Thompson v. Utah, 170 U.S. 343 (1898) .............. 2, 20

United States v. Gaudin, 515 U.S. 506 (1995) ........... 4

United States v. Rahimi, 602 U.S. 680 (2024) ........... 3

United States v. Sprague, 282 U.S. 716 (1931) .......... 6

Williams v. Florida, 399 U.S. 78 (1970) ............... 3, 21

Wolfe v. Martin, 2 Miss. 30 (1834)............................ 14

Work v. State, 2 Ohio St. 296 (1853) .............12, 13, 19

CONSTITUTIONS AND RULES

U.S. Const.:

Art. III .................................................................... 9

§ 2, cl. 3 ............................................................. 9

Amend. VI ..................................................2, 3, 4, 9,

16, 17, 19, 20

N.J. Const. of 1776, art. 22 ......................................... 9

Sup. Ct. R.:

Rule 37.2(a) ............................................................ 1

Rule 37.6 ................................................................ 1

v

OTHER MATERIALS

John H. Baker, An Introduction to English

Legal History (4th ed. 2002) .................................. 4

William Barton, Observations on the Trial by

Jury (Strasburg, Pa., 1803) ................................. 11

Joseph Bingham, A New Practical Digest of the

Law of Evidence (London, 1797) ........................... 5

1 Joel Prentiss Bishop, Commentaries on the

Law of Criminal Procedure (Boston, 1866) ........ 15

4 William Blackstone, Commentaries on the

Laws of England (Oxford, 1769) ..................... 7, 20

3 John Bouvier, Institutes of American Law

(Philadelphia, 1851) ............................................ 16

British Liberties, or the Free-born Subject’s

Inheritance (London, 1766) ............................... 6, 7

2 Richard Burn, A New Law Dictionary

(London, 1792) ....................................................... 6

Burn’s Abridgment, or the American Justice

(Dover, N.H., 2d ed. 1792) ..................................... 8

1 Joseph Chitty, A Practical Treatise on the

Criminal Law (Philadelphia, 1819) .................... 16

1 Edward Coke, The First Part of the Institutes

of the Laws of England (Dublin, 16th ed.

1809)..................................................................... 19

Conductor Generalis: or, the Office, Duty and

Authority of Justices of the Peace (Woodbridge, N.J., 1764) ................................................. 8

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American

Union (Boston, 1868) ........................................... 16

vi

2 Timothy Cunningham, A New and Complete

Law-Dictionary (London, 1765) ............................ 6

Michael Dalton, The Country Justice (London,

1727)....................................................................... 5

Giles Duncombe, Trials per Pais: or the Law of

England Concerning Juries (London, 5th ed.

1718)....................................................................... 5

Henry Flanders, An Exposition of the Constitution of the United States (Philadelphia,

1860)..................................................................... 16

Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527

(1947) ................................................................... 11

2 Matthew Hale, Historia Placitorum Coronae:

The History of the Pleas of the Crown

(London, 1736) ................................................... 4, 5

John Hawles, The Englishman’s Right (London,

1771)....................................................................... 7

Francis Hilliard, The Elements of Law (Boston,

1835)..................................................................... 16

Letter from Clarendon to William Pym (Jan.

27, 1766), in 1 Papers of John Adams 164

(Robert J. Taylor ed., 1977) ............................17, 18

Letters of Delegates to Congress, 1774-1789

(Paul H. Smith ed.):

Vol. 1 (1976) ........................................................ 8-9

Vol. 24 (1996) ......................................................... 9

Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts (2012) ...... 11

vii

Arthur J. Stansbury, Elementary Catechism

on the Constitution of the United States

(Boston, 1828) ...................................................... 15

2 Joseph Story, Commentaries on the Constitution of the United States (Thomas M. Cooley

ed., Boston, 4th ed. 1873) ...........................2, 15, 17

Peter Oxenbridge Thacher, Observations on

Some of the Methods Known in the Law of

Massachusetts to Secure the Selection and

Appointment of an Impartial Jury in Cases

Civil and Criminal (Boston, 1834)...................... 15

The Debates in the Several State Conventions,

on the Adoption of the Federal Constitution

(Jonathan Elliot ed., Washington, 2d ed.

1836):

Vol. 2 .................................................................... 10

Vol. 3 .................................................................... 10

The Declaration of Independence (U.S. 1776) ......... 18

The Federalist No. 10 (James Madison) .................. 18

Seymour D. Thompson & Edwin G. Merriam,

A Treatise on the Organization, Custody and

Conduct of Juries, Including Grand Juries

(St. Louis, 1882) ................................................... 16

2 Bird Wilson, The Works of the Honourable

James Wilson, L.L.D. (Philadelphia, 1804) .......... 8

Thomas Wood, An Institute of the Laws of

England (London, 3d ed. 1724) ............................. 5

INTEREST OF AMICI CURIAE *

The American Civil Liberties Union (the “ACLU”) is

a nationwide, non-profit, non-partisan organization

with more than 1.3 million members, founded in 1920

and dedicated to the principles of liberty and equality

enshrined in the Constitution. In support of those

principles, the ACLU has appeared before this Court

as amicus curiae in numerous cases concerning the

Sixth Amendment right to a jury trial, including:

Khorrami v. Arizona, 143 S. Ct. 22 (2022) (denying

certiorari); Edwards v. Vannoy, 593 U.S. 255 (2021);

Ramos v. Louisiana, 590 U.S. 83 (2020). The American Civil Liberties Union Foundation of Florida is

a non-profit, non-partisan membership organization

devoted to protecting civil rights and civil liberties for

all Floridians. It is a state affiliate of the ACLU.

The Rutherford Institute is a nonprofit civil liberties organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute provides legal assistance at

no charge to individuals whose constitutional rights

have been threatened or violated and educates the

public about constitutional and human rights issues

affecting their freedoms. The Rutherford Institute

works tirelessly to resist tyranny and threats to freedom by seeking to ensure that the government abides

by the rule of law and is held accountable when it

infringes on the rights guaranteed by the Constitution

and laws of the United States.

* Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Rule 37.2(a), counsel for amici also represent that

all parties were provided notice of amici ’s intention to file this

brief at least 10 days before it was due.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Sixth Amendment to the Constitution guarantees the right to trial by jury. That guarantee carries

with it the Founding-era understanding that the

jury—“the great bulwark of [our] civil and political liberties,” 2 Joseph Story, Commentaries on the Constitution of the United States § 1779, at 540 (Thomas

M. Cooley ed., Boston, 4th ed. 1873) (“Story, Commentaries”)—must have twelve members to convict the

criminally accused.

The historical record is clear that the Sixth Amendment guarantees the right to be tried by a twelveperson jury. Under English common law, the jury was

a body of twelve. A group that was smaller or larger

could not deliver a verdict. When the Constitution

and the Bill of Rights were ratified, the American

common-law rule was identical. And numerous postratification cases and treatises demonstrate that the

word “jury” in the Constitution and the Bill of Rights

was originally understood to bear its common-law

meaning: It required twelve members.

This Court’s precedents have echoed this historical

understanding as recently as last year. See Erlinger

v. United States, 602 U.S. 821, 831 (2024) (recognizing

that a criminal defendant must be convicted “by

the unanimous suffrage of twelve of his equals and

neighbours”) (emphasis added; cleaned up); see also,

e.g., Ramos v. Louisiana, 590 U.S. 83, 92 (2020) (“[A]

defendant enjoys a ‘constitutional right to demand

that his liberty should not be taken from him except

by the joint action of the court and the unanimous verdict of a jury of twelve persons.’ ”) (quoting Thompson

v. Utah, 170 U.S. 343, 351 (1898)) (emphasis added).

Yet, for half a century, criminal defendants in a

small minority of States have been subject to a

3

practice that never would have passed muster at our

nation’s Founding: being denied the right to a jury

comprised of twelve peers when their life and liberty

are in jeopardy. As indicated in Khorrami v. Arizona,

143 S. Ct. 22 (2022) (denying certiorari), at least two

Justices would have granted review of whether these

state-court practices comport with the Sixth Amendment. The petition here raises a recurring issue of

utmost importance to Americans who await criminal

trial in States that permit trial by a jury of fewer than

twelve. This Court’s decision in Williams v. Florida,

399 U.S. 78 (1970), is demonstrably inconsistent with

the original meaning of the Sixth Amendment and

this Court’s precedents—a conflict only this Court

can resolve. The longer the Court waits to correct the

error, the more uncertainty and needless litigation

will persist in the state courts across the country. The

Court should grant review to resolve this question

now.

ARGUMENT

The Original Meaning of “Jury,”

as the Term Was Enshrined in the Constitution,

Is a Body with Twelve Members

The Sixth Amendment provides that, “[i]n all

criminal prosecutions,” the defendant has the right to

trial by “jury.” As this Court has explained, that

constitutional text must be “interpreted by reference

to historical practices and understandings.” Kennedy

v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022)

(cleaned up); accord Free Speech Coal., Inc. v. Paxton,

145 S. Ct. 2291, 2303 (2025) (Thomas, J.); United

States v. Rahimi, 602 U.S. 680, 691 (2024) (Roberts,

C.J.); Haaland v. Brackeen, 599 U.S. 255, 288-91

(2023) (Barrett, J.); Hemphill v. New York, 595 U.S.

140, 150-52 (2022) (Sotomayor, J.); Edwards v.

Vannoy, 593 U.S. 255, 266 (2021) (Kavanaugh, J.);

4

Chiafalo v. Washington, 591 U.S. 578, 588 (2020)

(Kagan, J.). That is, the right to trial by “jury” in

criminal cases under the Sixth Amendment carries

its “original public meaning.” Ramos, 590 U.S. at 92;

accord Southern Union Co. v. United States, 567 U.S.

343, 353 (2012); Apprendi v. New Jersey, 530 U.S. 466,

477 (2000); United States v. Gaudin, 515 U.S. 506,

512-13, 516 (1995).

When the Bill of Rights was ratified, “jury” was a

familiar term under English and American common

law: It referred to a body of twelve members.

See Khorrami, 143 S. Ct. at 27 (Gorsuch, J., dissenting

from the denial of certiorari); accord Cunningham

v. Florida, 144 S. Ct. 1287, 1287 (2024) (Gorsuch, J.,

dissenting from the denial of certiorari). The Court

should therefore grant certiorari and hold that the

Sixth Amendment guarantees a constitutional right to

a twelve-person jury in criminal cases.

A. Under English Common Law, a “Jury” Had

Twelve Members

By the eighteenth century, the institution of the

twelve-member jury had been firmly established in

English law. “If a prisoner pleaded Not guilty, as most

did, and put himself on the country, twelve jurors

were sworn in.” John H. Baker, An Introduction to

English Legal History 509 (4th ed. 2002).

This requirement of twelve was emphasized in

the leading eighteenth-century treatise on English

criminal law, Matthew Hale’s History of the Pleas

of the Crown. At trial, Hale explained, “the jury are

commanded to look on the prisoners, and then severally twelve of them, neither more nor less, are sworn.”

2 Matthew Hale, Historia Placitorum Coronae: The

History of the Pleas of the Crown 293 (London, 1736).

Hale observed that, if the jurors numbered less than

5

twelve, they had no power to act. If one juror “goes out

of town,” he noted, “whereby only eleven remain, these

eleven cannot give any verdict without the twelfth.”

Id. at 295. The eleven remaining jurors had to “be

discharged, and a new jury sworn, and new evidence

given, and the verdict taken of the new jury.” Id. at

295-96. Likewise, “[i]f only eleven be sworn by mistake, no verdict can be taken of the eleven.” Id. at 296.

The same principle—that a jury must have twelve

members—was repeated in many other English treatises of the period. The “Number must be Twelve,”

insisted one treatise on juries. Giles Duncombe, Trials

per Pais: or the Law of England Concerning Juries 79

(London, 5th ed. 1718). “And the Law is so precise in

this Number of Twelve, that if the Trial be by more or

less, it is a Mistrial.” Id. at 79-80. As another author

explained, “no One shall be Convict by Verdict, unless

the Offence is found . . . by Twelve (not more or less)

of the Petty Jury upon Trial.” Thomas Wood, An

Institute of the Laws of England 623 (London, 3d ed.

1724). Another treatise declared that “on a trial by

a petit jury no more nor less than twelve can be

allowed.” Joseph Bingham, A New Practical Digest of

the Law of Evidence 63 (London, 1797).

Manuals for judges explained that, when conducting

a criminal trial, exactly twelve jurors had to be sworn.

“[C]all the Foreman of the Jury, and say to him, Lay

your Hand on the Book,” instructed one guidebook.

Michael Dalton, The Country Justice 654 (London,

1727). Once the foreman had been sworn, “[t]hen call

the Second, and swear him in like Manner, and so to

Twelve; and neither more nor less must be sworn.” Id.

To be on the safe side, the judge was advised to “count

them Twelve” before proceeding any further. Id.

6

Consistent with this historical understanding,

legal dictionaries of the era defined “jury” as a body

of twelve people. See 2 Timothy Cunningham, A

New and Complete Law-Dictionary (London, 1765)

(defining “jury” as body “of twelve, [which] can be

neither more nor less”) (unpaginated; quotation is

from section 3 of the definition of “jury”); 2 Richard

Burn, A New Law Dictionary 45 (London, 1792) (“upon

a trial by a petit jury, it can be by no more, nor less,

than 12”). These sources support the conclusion that

the ordinary meaning of “jury” is a twelve-member

body, for constitutional interpretation is “guided by

the principle that ‘[t]he Constitution was written to be

understood by the voters; its words and phrases were

used in their normal and ordinary as distinguished

from technical meaning.’ ” District of Columbia v.

Heller, 554 U.S. 570, 576 (2008) (quoting United

States v. Sprague, 282 U.S. 716, 731 (1931)) (brackets

in Heller); accord NLRB v. Noel Canning, 573 U.S.

513, 527 (2014) (using Founding-era dictionary definition to ascertain original meaning); Arizona State

Legislature v. Arizona Indep. Redistricting Comm’n,

576 U.S. 787, 813-14 (2015) (similar).

The same point was made in works intended to

summarize the English legal system for a general

audience. “[B]y a fundamental law in our government,”

one book explained, no one could be convicted “for any

crime whatsoever, but upon being found guilty on two

several tryals (for so may that of the grand and petit

jury be called) and the judgment of twice twelve men

at least.” British Liberties, or the Free-born Subject’s

Inheritance 370 (London, 1766). The “twice twelve”

referred to the size of the grand and petit juries:

“twelve or more to find the bill of indictment against

him, and twelve others to give judgment upon the

7

general issue of Not guilty.” Id. The petit jury “always

consists of twelve men, and no more nor any less.” Id.

at 376-77 (footnote omitted). Another contemporary

author likewise observed that conviction of a crime

required the verdict of “no less than twelve honest,

substantial, impartial” jurors. John Hawles, The Englishman’s Right 9 (London, 1771).

The requirement that juries have twelve members

was so well established in eighteenth-century England

that, when William Blackstone composed his ubiquitous Commentaries, he did not need to belabor the

point, because it was already familiar to his readers.

Blackstone praised “[t]he antiquity and excellence” of

the English institution of jury trial, which he contrasted with juryless places like “France or Turkey,”

where monarchs could “imprison, dispatch, or exile

any man that was obnoxious to the government, by

an instant declaration, that such is their will and

pleasure.” 4 William Blackstone, Commentaries on

the Laws of England 343 (Oxford, 1769) (“Blackstone,

Commentaries”). It was one of “the liberties of

England” that one could not be convicted of a crime

without “the unanimous suffrage of twelve of his

equals and neighbours.” Id.; see Khorrami, 143 S. Ct.

at 23 (Gorsuch, J., dissenting from the denial of

certiorari) (“[i]n 1769, Blackstone stated the rule

succinctly”); Erlinger, 602 U.S. at 831.

In the late eighteenth century, English law was thus

clear. A “jury” was a body with twelve members. A

group that was smaller could not render a verdict in a

criminal case.

8

B. When the Constitution Was Ratified, Americans Likewise Understood the Term “Jury”

To Mean a Group of Twelve

American law in the Founding era largely replicated

English law. The size of criminal juries was no

exception. American guidebooks for judges, like their

English predecessors, instructed that juries should

be no smaller or larger than twelve. See Conductor

Generalis: or, the Office, Duty and Authority of Justices of the Peace 393 (Woodbridge, N.J., 1764); Burn’s

Abridgment, or the American Justice 380 (Dover, N.H.,

2d ed. 1792).

“In the 1790s, James Wilson, both a framer . . . and a

Justice . . . , explained the common-law rule”: “[T]welve

jurors is of indispensable necessity.” Khorrami, 143

S. Ct. at 23 (Gorsuch, J., dissenting from the denial

of certiorari). In a series of lectures delivered in

1790-1791, Wilson further defined a “verdict” as “the

joint declaration of twelve jurymen upon their oaths.”

2 Bird Wilson, The Works of the Honourable James

Wilson, L.L.D. 343 (Philadelphia, 1804). And as Chief

Justice McKean of the Pennsylvania Supreme Court

put it in 1788, “I have always understood it to be the

law, independent of [the state constitution’s bill of

rights], that the twelve jurors must be unanimous in

their verdict.” Respublica v. Oswald, 1 U.S. 319, 323

(Pa. 1788) (statement) (emphasis added).

The correspondence of members of the Continental

Congress likewise shows that juries were understood

to have twelve members. In one letter, John Dickinson explained that the right to jury trial means

“that neither Life, Liberty, or property can be taken

from the Possessor, until twelve of his Countrymen

and Peers” reach a verdict. 1 Letters of Delegates to

Congress, 1774-1789, at 236, 238 (Paul H. Smith ed.,

9

1976). William Pierce of Virginia similarly insisted

that the criminal jury have twelve members: “The

solemnity of the trial by jury is suited to the nature of

criminal cases, because . . . the fact or truth of every

accusation . . . is to be confirmed by the unanimous

suffrage of twelve good men, ‘superior to all suspicion.’ ”

24 id. at 445, 448 (1996).

In fact, the requirement that juries have twelve

members was the basis for one of the first instances of

judicial review in the United States. New Jersey’s

constitution of 1776 provided that “the inestimable

Right of Trial by Jury shall remain confirmed.” N.J.

Const. of 1776, art. 22. Although the state constitution did not specify the size of the jury, the New Jersey

Supreme Court held in Holmes v. Walton (N.J. 1780)

that a statute providing for six-person juries was void

because a jury of six “was not a constitutional jury.”

State v. Parkhurst, 9 N.J.L. 427, 444 (1802). (Holmes

was not reported, but it was discussed in Parkhurst.)

The right to a jury trial in criminal cases is so

“fundamental to the American scheme of justice” that

it appears “not only in the Sixth Amendment, but also

in Article III.” Ramos, 590 U.S. at 89, 93; see U.S.

Const. art. III, § 2, cl. 3. So important was the jury

at the Founding that, “[i]n the ratification debates,”

“some questioned” whether the guarantee in Article

III alone sufficed. Erlinger, 602 U.S. at 830. “To

address this and other concerns about the new Constitution, James Madison agreed to draft a series of

amendments we now know as the Bill of Rights,”

including the Sixth Amendment. Id.

During those disputes over whether the new

Constitution sufficiently protected the right to a jury

trial—a right that had to be “guarded with the most

jealous circumspection,” id. (cleaned up)—the delegates

10

understood that juries would have twelve members.

For instance, in the Virginia ratifying convention,

Edmund Randolph defended the Constitution against

the claim that it was deficient because it lacked a bill

of rights. (Randolph was then the Commonwealth’s

governor. When the Constitution was ratified, he

became the nation’s first attorney general.) Randolph

argued that no bill of rights was necessary. “Is there

not provision made, in this Constitution, for the trial

by jury in criminal cases?” he asked. 3 The Debates

in the Several State Conventions, on the Adoption of

the Federal Constitution 467 (Jonathan Elliot ed.,

Washington, 2d ed. 1836). He insisted that there was

no reason for the Constitution to address the topic in

any more detail, because “[t]here is no suspicion that

less than twelve jurors will be thought sufficient.” Id.

On the other side of the Virginia debate, Patrick

Henry, the Commonwealth’s former governor, attacked

the Constitution for lacking a bill of rights. He feared

that “we are to part with that trial by jury which our

ancestors secured their lives and property with.” Id.

at 544. Henry extolled the jury as an “excellent mode

of trial,” because “[t]he unanimous verdict of twelve

impartial men cannot be reversed.” Id.

In the Pennsylvania ratifying convention, Thomas

McKean, the State’s chief justice, defended the

Constitution’s grant of appellate jurisdiction to the

Supreme Court by observing that, at common law,

appellate courts often reviewed the decisions of trial

courts, even in some cases tried to a jury. McKean

declared: “Juries are not infallible because they are

twelve in number.” 2 id. at 540.

11

C. Post-Ratification Cases and Treatises Demonstrate the Term “Jury” Was Originally Understood To Carry Its Common-Law Meaning—a

Body of Twelve Members

The question sometimes arose in the early United

States: Was a body with less than twelve members a

“jury” as the term was used in the state and federal

constitutions? American courts and commentators

consistently held that it was not. They reasoned that

the word “jury” meant a jury with twelve members,

because the state and federal constitutions had incorporated the conventional common-law understanding

of the term. See Khorrami, 143 S. Ct. at 23 (Gorsuch,

J., dissenting from the denial of certiorari). Trials thus

required “a jury of twelve men, as now established

by the constitution.” William Barton, Observations on

the Trial by Jury 10 (Strasburg, Pa., 1803).

Early American courts used the same interpretive

method that is still used today: When a legal text,

such as a constitution, includes a term with a wellestablished meaning, the term should be given that

meaning where no contrary intent appears. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 73 (2012). In the oftrepeated words of Justice Frankfurter, “if a word

is obviously transplanted from another legal source,

whether the common law or other legislation, it brings

the old soil with it.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev.

527, 537 (1947).

The word “jury,” as used in the state and federal

constitutions, thus meant the familiar twelve-member

body that had been standard for centuries. As one

court explained:

12

The trial by jury is a great constitutional right,

and when the convention incorporated the provision into the constitution of the country, they most

unquestionably had reference to the jury trial

as known and recognized by the common law. It

is a well ascertained fact, that the common law

jury consisted of twelve men, and as a necessary

consequence, since the constitution is silent upon

the subject, the conclusion is irresistable [sic] that

the framers of that instrument intended to require

the same number.

Larillian v. Lane & Co., 8 Ark. 372, 374-75 (1848).

The Mississippi Supreme Court agreed in reversing

a conviction by a jury of only eleven members.

Carpenter v. State, 5 Miss. 163 (1839). To define the

right to a trial by jury, the court observed, “we must

necessarily recur to the provisions of the common

law defining the qualifications, and ascertaining the

number of which the jury shall consist; as the standard to which, doubtless, the framers of our constitution referred.” Id. at 166. Because “[a]t common law

the number of the jury, for the trial of all issues involving the personal rights and liberties of the subject,

could never be less than twelve,” the same was necessarily true under the constitution. Id.

The Ohio Supreme Court reached the same conclusion. It began by noting that, in the constitution, “the

right of jury trial is recognized to exist.” Work v. State,

2 Ohio St. 296, 302 (1853). The court asked: “What,

then, is this right? It is nowhere defined or described

in the constitution. It is spoken of as something already

sufficiently understood, and referred to as a matter

already familiar to the public mind.” Id. The court

reviewed the history of juries in England and the

United States, which showed “beyond controversy the

13

number of the jury at common law . . . . The number

must be twelve.” Id. at 304. Indeed, the court

observed that the question of fewer than twelve jurors

“has seldom arisen, but whenever it has, the same

result has followed, without a single dissenting opinion or dictum to the contrary.” Id. at 306. The court

accordingly reversed a conviction obtained with a jury

of less than twelve. Id. at 308.

Numerous other early state courts also reversed

convictions that flowed from a jury of less than twelve.

See Doebler v. Commonwealth, 3 Serg. & Rawle 237,

237 (Pa. 1817); Jackson v. State, 6 Blackf. 461, 461

(Ind. 1843); Brown v. State, 8 Blackf. 561, 561 (Ind.

1847); Bowles v. State, 37 Tenn. 360, 362-63 (1858);

State v. Meyers, 68 Mo. 266, 266 (1878); Byrd v. State,

2 Miss. 163, 177 (1834). Such a result was necessary

because a jury of less than twelve is “a fatal defect

in criminal cases, without hesitation.” Cowles v. Buckman, 6 Iowa 161, 163 (1858).

The New Hampshire Supreme Court provided an

especially thorough discussion of the issue in response

to a request from the legislature for an opinion as to

whether the legislature had the authority to reduce

the size of juries. Opinion of Justices, 41 N.H. 550

(1860). “The terms ‘jury,’ and ‘trial by jury,’ are, and

for ages have been well known in the language of the

law,” the court began. Id. at 551. “They were used

at the adoption of the constitution, and always, it is

believed, before that time, and almost always since, in

a single sense. A jury for the trial of a cause was a

body of twelve men.” Id. When the constitution was

adopted, the court continued, “no such thing as a jury

of less than twelve men, or a jury deciding by less than

twelve voices, had ever been known, or ever been the

subject of discussion in any country of the common

14

law.” Id. at 552. For this reason, the court concluded

that “no body of less than twelve men, though they

should be by law denominated a jury, would be a jury

within the meaning of the constitution; nor would a

trial by such a body, though called a trial by jury, be

such, within the meaning of that instrument.” Id.

In short, early American courts consistently held

that juries must have twelve members. See Burk v.

State, 2 H. & J. 426, 426 (Md. 1809) (referring to “the

legal number of twelve sworn on the jury”); State v.

Burket, 9 S.C.L. 155, 155 (S.C. Const. Ct. App. 1818)

(“To constitute a jury, every lawyer knows that twelve

lawful men are necessary, and that without this number no jury can exist[.]”); Foote v. Lawrence, 1 Stew.

483, 483 (Ala. 1828) (“The term jury is well understood

to be twelve men[.]”); Wolfe v. Martin, 2 Miss. 30, 31

(1834) (“There is no jury for the trial of issues known

to the constitution and laws of this state, except that

which consists of ‘twelve good and lawful men[.]’ ”);

Grayson v. Cummins, Dallam 391, 393 (Tex. 1841) (“It

has been often ruled that a less number than twelve

is no jury[.]”); Dixon v. Richards, 3 Miss. 771, 771

(1838) (“The third error assigned is fatal. A jury must

consist of twelve men: no other number is known to

the law: here there was but eleven. The judgment

must be reversed.”); Norval v. Rice, 2 Wis. 22, 26-29

(1853) (collecting sources reflecting the common law

and holding that the constitutional right to trial by

jury requires twelve-member juries); In re Klein, 14 F.

Cas. 719, 729 (D. Mo.) (No. 7,866) (“Could congress

direct a trial by jury, and provide that the jury should

consist of three men; and that a majority should convict? No person will assert the affirmative.”), rev’d on

other grounds, 42 U.S. (1 How.) 277 (C.C.D. Mo. 1843)

(No. 7,865) (Field, Circuit Justice); Cancemi v. People,

18 N.Y. 128, 135 (1858) (“A legal jury, according to

15

the common law, consists of twelve persons; our

constitution declares that ‘the trial by jury, in all cases

in which it has heretofore been used, shall remain

inviolate forever[.]’ ”) (citations omitted); Briant v.

Russel, 2 N.J.L. 146, 146 (1806) (“It appeared by

the record, that the cause was tried by eleven jurors;

for which cause the judgment was reversed.”). As one

court summarized, “[w]henever there is a constitutional guaranty of the right of trial by jury, the jury

must be composed of twelve men.” State v. Mansfield,

41 Mo. 470, 475 (1867).

Early American treatises reflected the consensus

that the Constitution’s use of the term “jury” required

a jury of twelve, because such was the accepted

meaning of the term at common law. See 2 Story,

Commentaries § 1779, at 541 n.3 (“[A] trial by jury

is generally understood to mean ex vi termini [by

definition], a trial by a jury of twelve men, impartially

selected, who must unanimously concur in the guilt of

the accused before a legal conviction can be had. Any

law, therefore, dispensing with any of these requisites,

may be considered unconstitutional.”); 1 Joel Prentiss

Bishop, Commentaries on the Law of Criminal Procedure § 761, at 532 (Boston, 1866) (“[I]t is a point upon

which the authorities agree, that, within the meaning

of our constitutional provisions, a jury of less than

twelve men 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.”); see also Arthur J.

Stansbury, Elementary Catechism on the Constitution

of the United States 63 (Boston, 1828) (“[T]he jury consists of twelve persons[.]”); Peter Oxenbridge Thacher,

Observations on Some of the Methods Known in the

Law of Massachusetts to Secure the Selection and

Appointment of an Impartial Jury in Cases Civil and

Criminal 7 (Boston, 1834) (“The trial by jury is by

16

twelve free and lawful men[.]”); Francis Hilliard, The

Elements of Law 288 (Boston, 1835) (“A jury consists

of twelve men[.]”); 1 Joseph Chitty, A Practical

Treatise on the Criminal Law 345 (Philadelphia, 1819)

(“The petit jury, when sworn, must consist precisely

of twelve . . . . If, therefore, the number returned be

less than twelve, any verdict must be ineffectual,

and the judgment will be reversed[.]”); 3 John Bouvier,

Institutes of American Law § 3035, at 327 (Philadelphia, 1851) (“By jury is understood a body of twelve[.]”);

Henry Flanders, An Exposition of the Constitution of

the United States 217 (Philadelphia, 1860) (“A petit

jury consists of twelve men[.]”); Seymour D. Thompson

& Edwin G. Merriam, A Treatise on the Organization,

Custody and Conduct of Juries, Including Grand

Juries § 6, at 6 (St. Louis, 1882) (“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”).

In short, post-ratification interpretations support

the conclusion that the Framers incorporated the

original, common-law meaning of “jury” in the Sixth

Amendment—a twelve-member body. Michigan judge

Thomas Cooley summed up this consensus in his

mid-19th century treatise on constitutional law:

A petit, petty, or traverse jury is a body of twelve

men, who are sworn to try the facts of a case as

they are delivered from the evidence placed before

them. Any less than this number of twelve would

not be a common-law jury, and not such a jury as

the constitution preserves to accused parties . . . .

Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative Power of

the States of the American Union 319 (Boston, 1868).

17

D. Twelve-Member Juries Fulfilled the Historical

Purpose of the Jury Right

At common law and at ratification, the jury right

was understood as a guard against tyranny and a

guarantor of liberty. “As John Adams put it, the

founders saw representative government and trial

by jury as ‘the heart and lungs’ of liberty.” Erlinger,

602 U.S. at 829-30 (quoting Letter from Clarendon

to William Pym (Jan. 27, 1766), in 1 Papers of John

Adams 164, 169 (Robert J. Taylor ed., 1977) (“Adams

Papers”)); see also Flowers v. Mississippi, 588 U.S.

284, 293 (2019) (Kavanaugh, J.) (“Other than voting,

serving on a jury is the most substantial opportunity

that most citizens have to participate in the democratic

process.”). The jury was a “guard against a spirit of

oppression and tyranny on the part of rulers”: it was,

and remains today, a “great bulwark of . . . civil and

political liberties.” 2 Story, Commentaries §§ 17791780, at 540-41.

In light of this core purpose of the jury, the Sixth

Amendment “carrie[s] with it some meaning about the

content and requirements of a jury.” Ramos, 590 U.S.

at 89. Like the requirement of unanimity this Court

recognized in Ramos, the requirement that a defendant be convicted by a jury of twelve members is

“[i]nhering” in the constitutional guarantee to a jury

trial. Erlinger, 602 U.S. at 830; see id. at 831 (criminal

charges must be “confirmed by the unanimous suffrage

of twelve” jurors) (emphases added). After all, the

right to trial by jury is “no mere procedural formality,

but a fundamental reservation of power in our constitutional structure.” Blakely v. Washington, 542 U.S.

296, 305-06 (2004).

The authors and defenders of the Constitution were

preeminently concerned with oppression by majorities: “[T]he majority, having such co-existent passion

18

or interest, must be rendered, by their number and

local situation, unable to concert and carry into effect

schemes of oppression.” The Federalist No. 10 (James

Madison). In the jury context, this concern is abated

by the rule that a jury must consist of twelve:

The greater number provides greater opportunities

for dissenters to put the government to its proof. See

Erlinger, 602 U.S. 829-30 (without juries, “we ‘have

no other fortification . . . against being ridden like

horses, fleeced like sheep, worked like cattle, and fed

and clothed like swine and hounds’ ”) (quoting Adams

Papers at 169) (ellipsis in Erlinger). For this reason,

the drafters were acutely concerned that “the new

federal government might fall prey to the kinds of

temptations that led the British to restrict the jury

trial right in the colonies.” Id. at 830; see also The

Declaration of Independence paras. 2, 20 (U.S. 1776)

(“[t]he history of the present King of Great-Britain

is a History of repeated Injuries and Usurpations,

all having in direct Object the Establishment of an

absolute Tyranny over these States” by, inter alia,

“depriving us in many Cases, of the Benefits of Trial

by Jury”).

As Members of this Court have recognized, “a person

in the minority will adhere to his position more

frequently when he has at least one other person

supporting his argument,” a more likely outcome with

twelve than with six or eight. Ballew v. Georgia,

435 U.S. 223, 236 (1978) (plurality opinion). Indeed,

smaller juries were a feature of the Jim Crow era

because they allowed majorities “to suppress minority

voices in public affairs.” Khorrami, 143 S. Ct. at 27

(Gorsuch, J., dissenting from the denial of certiorari)

(citing Ramos, 590 U.S. at 86-89).

19

And twelve are necessary to safeguard another

guarantee of the Sixth Amendment: that of impartiality. “The common law required a juror to have

‘freedome of mind’ and to be ‘indifferent as hee stands

unsworne.’ ” Pena-Rodriguez v. Colorado, 580 U.S.

206, 231 (2017) (Thomas, J., dissenting) (quoting 1

Edward Coke, The First Part of the Institutes of the

Laws of England § 234, at 155a (Dublin, 16th ed.

1809)). A juror at common law was to “have no interest of their own affected, and no personal bias, or

prepossession, in favor or against either party.” Pettis

v. Warren, 1 Kirby 426, 427 (Conn. Super. Ct. 1788).

Juries of twelve are necessary to achieve this purpose:

“[T]he smaller the group, the less likely it is to

overcome the biases of its members to obtain an

accurate result,” whereas “objectivity result[s]” from

larger groups. Ballew, 435 U.S. at 233 (plurality

opinion). The guarantee of jury impartiality, itself

well-established at common law, is reinforced by

the guarantee of a twelve-member jury. See Parker

v. Gladden, 385 U.S. 363, 366 (1966) (per curiam)

(“[P]etitioner was entitled to be tried by 12, not 9 or

even 10, impartial and unprejudiced jurors.”). Courts

have long recognized that “diminishing the number

[of jurors] impairs the right, lessens the security of

the accused, and increases the danger of conviction,”

and, “[i]f corruption or prejudice are to be feared and

avoided, they are much more likely to influence the

conduct of six [jurors] than of twelve.” Work, 2 Ohio

St. at 305; accord Carpenter, 5 Miss. at 166 (“[a] speedy

public trial by an impartial jury of [the accused’s]

country” is “justly regarded as the palladium of the

personal liberties of the citizen”) (cleaned up).

* * *

20

A jury of twelve is required as a matter of text, history, and tradition. And it fulfills the Constitution’s

aim to effectively deter governmental tyranny and ensure impartiality. All evidence points in the same direction: A “jury,” at common law and at the Founding,

was—and remains today—a body of twelve members.

E. This Court’s Precedents Recognize the Original Meaning of “Jury” Is a Body of Twelve

Consistent with the historical consensus, in 1898,

this Court spoke unequivocally: “[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.” Thompson, 170 U.S. at 349 (emphasis added). The Court

reiterated this historical understanding in subsequent

years on numerous occasions. See, e.g., Capital Traction Co. v. Hof, 174 U.S. 1, 13-14 (1899) (“the primary

and usual sense of the term [‘trial by jury’] at the common law and in the American constitutions, is . . . trial

by a jury of 12”); Maxwell v. Dow, 176 U.S. 581, 586

(1900) (“That a jury composed, as at common law, of

twelve jurors was intended by the Sixth Amendment

to the Federal Constitution, there can be no doubt.”);

Rassmussen v. United States, 197 U.S. 516, 527 (1905)

(similar); Apprendi, 530 U.S. at 477 (similar; quoting

4 Blackstone, Commentaries at 343).

Most recently, in Ramos, the Court echoed those

precedents and reaffirmed the original public meaning of the Sixth Amendment: “[A] defendant enjoys a

‘constitutional right to demand that his liberty should

not be taken from him except by the joint action of the

court and the unanimous verdict of a jury of twelve

persons.’ ” 590 U.S. at 92 (quoting Thompson, 170 U.S.

at 351) (emphasis added). Just last year, the Court

again recognized that a criminal defendant must be

21

convicted “by the unanimous suffrage of twelve of

his equals and neighbours.” Erlinger, 602 U.S. at 831

(emphasis added; cleaned up). Review by this Court

is necessary because Williams v. Florida, 399 U.S. 78

(1970), is in grave tension with those intervening

decisions.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

CECILLIA D. WANG

EVELYN DANFORTH-SCOTT

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street

Suite 700

San Francisco, CA 94104

YASMIN CADER

BRANDON BUSKEY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

DANIEL TILLEY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

FLORIDA

4343 W. Flagler Street

Suite 400

Miami, FL 33134

ALEJANDRA ÁVILA

Counsel of Record

ANNAMARIA M. MORALES-KIMBAL

NATALIE E. GIOTTA

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

(202) 326-7900

(aavila@kellogghansen.com)

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

August 25, 2025