Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

No. 25-6623

IN THE

Supreme Court of the United States

___________________________________

HAMED KIAN,

v.

FLORIDA,

___________________________________

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE FLORIDA DISTRICT

COURT OF APPEAL, FOURTH DISTRICT

___________________________________

BRIEF OF AMICUS CURIAE

PROFESSOR AKHIL REED AMAR,

STERLING PROFESSOR OF LAW AND

POLITICAL SCIENCE, YALE UNIVERSITY

AND YALE UNIVERSITY SCHOOL OF LAW,

IN SUPPORT OF PETITIONER

___________________________________

Christopher A. Duggan

SMITH DUGGAN CORNELL &

GOLLUB LLP

55 Old Bedford Road

Lincoln MA 01773

(617) 228-4444

chris.duggan@smithduggan.com

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Table of Authorities ................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument ...............................................1

Argument.....................................................................2

Part I. On Originalist Scholarship .............................3

Part II. On Juries ........................................................5

Part III. On Precedent and Overruling ......................8

A. On Rights Declaration......................................9

B. On Remedies ...................................................14

C. On Reliance.....................................................21

Part IV. On Habeas ...................................................23

Conclusion .................................................................29

ii

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972) ...................................................21

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) .....................................................4

Ballew v. Georgia,

435 U.S. 223 (1978) ...................................................21

Batson v. Kentucky,

476 U.S. 79 (1986) ...............................................25, 26

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) ...................................................29

Burks v. United States,

437 U.S. 1 (1978) .......................................................23

California v. Acevedo,

500 U.S. 565 (1991) .....................................................4

Cox v. Louisiana,

379 U.S. 536 (1965) ...................................................22

Daniels v. Williams,

474 U.S. 327 (1986) ...................................................12

Desist v. United States,

394 U.S. 244 (1969) .............................................25, 27

iii

Dickerson v. United States,

530 U.S. 428 (2000) ...................................................16

Duncan v. Louisiana,

391 U.S. 145 (1968) ...............................................7, 26

Edwards v. Vannoy,

593 U.S. 255 (2021) ...................................................25

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S.1 (2004) ..........................................................4

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) ...............................................11, 12

Evans v. Gore,

253 U.S. 245 (1920) ...................................................11

Fox Film Corp. v. Doyal,

286 U.S. 123 (1932) ...................................................11

Hodges v. United States,

203 U.S. 1 (1906) .......................................................12

Insurance Co. v. Morse,

87 U.S. (20 Wall.) 445 (1874) ..................................5, 6

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ...................................................12

Katzenbach v. Morgan,

384 U.S. 641 (1966) ...................................................17

iv

Learning Resources, Inc. v. Trump,

607 U.S. 229 (2026) .....................................................2

Lee v. Weisman,

505 U.S. 577 (1992) .....................................................4

Long v. Rockwood,

277 U.S. 142 (1928) ...................................................11

Low v. Austin,

80 U.S. (13 Wall.) 29 (1871) ......................................12

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)................... 10, 13, 14, 19

McDonald v. City of Chicago,

561 U.S. 742 (2010) .....................................................4

Michelin Tire Corp. v. Wages,

423 U.S. 276 (1976) ...................................................12

Miles v. Graham,

268 U.S. 501 (1925) ...................................................11

Minersville Sch. Dist. v. Gobitis,

310 U.S. 586 (1940) ....................................... 11-12, 29

Miranda v. Arizona,

384 U.S. 436 (1966) ....................................... 15, 16, 17

New York State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) .....................................................4, 8

v

O’Malley v. Woodrough,

307 U.S. 277 (1939) ...................................................11

Parratt v. Taylor,

451 U.S. 527 (1981) ...................................................12

Patton v. United States,

281 U.S. 276 (1930) ............................................. 5-6, 7

Plessy v. Ferguson,

163 U.S. 537 (1896) ...................................................29

Ramos v. Louisiana,

590 U.S. 83 (2020) ............. 2, 19, 20, 21, 25, 26, 27, 28

Riley v. California,

573 U.S. 373 (2014) .....................................................4

Swift v. Tyson,

41 U.S. (16 Pet.) 1 (1842) ..........................................11

Teague v. Lane,

489 U.S. 288 (1989) ....................................... 25, 26, 27

Thompson v. Utah,

170 U. S. 343 (1898) ....................................................7

Town of Greece v. Galloway,

572 U.S. 565 (2014) .....................................................4

Trump v. Barbara,

146 S. Ct. 2438 (2026) ...............................................13

vi

Trump v. Cook,

143 S. Ct. 2234 (2026) ...............................................18

United States v. Harriss,

347 U. S. 612 (1954) ..................................................22

Virginia v. Moore,

553 U.S. 164 (2008) .....................................................4

Washington v. Glucksberg,

521 U.S. 702 (1997) ......................................... 8, 15, 16

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ....................................... 11, 12, 29

Williams v. Florida,

399 U.S. 78 (1970) .... 1, 2, 5, 7, 8, 9, 10, 12, 17, 19, 20,

21, 23, 24, 25, 26, 27, 28, 29

Constitutional Provisions, Statutes, and Rules

U.S. Const. Art. III .......................... 1, 8, 10, 11, 15, 18

U.S. Const. Art. VI ....................................................13

U.S. Const. First Amendment ....................................4

U.S. Const. Fourth Amendment .................................4

U.S. Const. Fifth Amendment ..................................16

U.S. Const. Sixth Amendment ............... 1, 7, 8, 26, 27

U.S. Const. Ninth Amendment...........................15, 17

vii

U.S. Const. Fourteenth Amendment .. 1, 3, 4, 7, 8, 17, 27

U.S. Const. Fifteenth Amendment ................................ 6

U.S. Const. Nineteenth Amendment ..........................6

U.S. Const. Twenty-Fourth Amendment ...................... 6

U.S. Const. Twenty-Sixth Amendment ......................... 6

Fla. Stat. § 460.411(1)(b) ..........................................22

Fed. R. Crim. P. 23(b) .................................................6

U.S. Supreme Court Rule 37 ......................................5

Other Authorities

Akhil Reed Amar, America’s Constitution:

A Biography (2005) .....................................................6

Akhil Reed Amar, America’s Unwritten

Constitution (2012) ..............................................5, 6, 8

Akhil Reed Amar, Double Jeopardy Law Made

Simple, 106 Yale L.J. 1806 (1997) ............................23

Akhil Reed Amar, Heller, HLR, and Holistic

Legal Reasoning, 122 Harv. L. Rev. 145 (2008) .......21

Akhil Reed Amar, The Bill of Rights and the

Fourteenth Amendment, 101 Yale L.J. 1193

(1992) ...........................................................................3

viii

Akhil Reed Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1131 (1991) .....................3

Akhil Reed Amar, The Bill of Rights: Creation

and Reconstruction (1998) .......................... 3, 4, 5, 6, 7

Akhil Reed Amar, The Words That Made Us:

America’s Constitutional Conversation,

1760-1840 (2021) .........................................................6

Kirk Semple, The Movie That Made a Supreme

Court Justice, N.Y. Times (Oct. 17, 2010) ................26

INTEREST OF AMICUS CURIAE 1

Akhil Reed Amar is a constitutional scholar

and historian who seeks to aid this Court in its efforts

to practice principled constitutional decision-making

and faithful originalism. In previous briefs to this

Court, he has advanced, and today he once again

advances, positions that he has taken as an academic

long before any partisan or narrowly political

implications could have been known.

SUMMARY OF ARGUMENT

This case presents this Court a perfect

opportunity to restore first principles of text, history,

structure, and precedent.

The Constitution’s Third Article and its Sixth

and Fourteenth Amendments require criminal juries

for serious criminal cases, state and federal. A proper

criminal jury means twelve good persons, nothing

less. In 1791 and 1868, the number twelve was

implicit in the word “jury,” a settled understanding

overwhelmingly confirmed by subsequent American

tradition.

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

held that a six-person pseudo-jury could suffice in a

serious criminal case, is plainly wrong and should be

overruled, both as a matter of constitutional

originalism and as a matter of meta-precedent—that

is, this Court’s repeated precedents on when prior

1 No party or party’s counsel authored or financially supported

any of this brief.

1

precedents can and should be overruled. In a series of

landmark twentieth-century constitutional cases

across a wide range of issues, this Court repeatedly

overruled a prior case or line of cases simply and

solely because the Court believed that the prior case

law mangled the Constitution’s true meaning, and no

special factors, such as reliance, prevented a judicial

broom sweep. These meta-precedents strongly

support Petitioner’s claim for relief in today’s case via

a clean overruling of Williams.

Also, this Court’s recent landmark ruling in

Ramos v. Louisiana, 590 U.S. 83 (2020), undermines

the substantive and methodological foundations of

Williams and thus provides yet another compelling

reason to overrule this misshapen 1970 ruling.

Ramos’s repeated references to a “unanimous” jury of

“twelve,” id. at 90, 92, 96 n.38, 100 n.46, and the

majority opinion’s faithful attention to the

Constitution’s text, structure, and original meaning

suggest that twelve out of twelve votes—not a mere

ten out of twelve, and also not a mere six out of six—

are constitutionally necessary to convict a defendant

of a serious crime.

That is the easy part of today’s case. The hard

part is how best to proceed remedially in future

habeas cases that will present similar issues. There

are several options, and each raises genuine

complexities. But the Court need not decide these

issues in this case. Future remedial complexities

should not deter this Court from enforcing the

Constitution’s true meaning today. Cf. Learning

Resources, Inc. v. Trump, 607 U.S. 229 (2026).

2

ARGUMENT

Part I. On Originalist Scholarship

Amicus and this Court have been here before.

Nearly three decades ago, amicus published an

ambitious book of originalist scholarship vigorously

defending the modern Court’s general approach to

“the Bill of Rights”—the various privileges,

immunities, rights, and freedoms originally declared

in the Constitution’s early amendments in the 1790s

and later made applicable against states via the

Fourteenth Amendment. See Akhil Reed Amar, The

Bill of Rights: Creation and Reconstruction (1998).

The book’s concluding sentence declared that “[f]rom

start to finish this book has aimed to explain how

today’s judges and lawyers have often gotten it right

without quite realizing why.” Id. at 307.

The 1998 book and its precursor articles 2

identified several messy doctrinal areas that needed

tidying up by the Court.

First, the book claimed that American citizens

have a constitutional right to weapons for personal

self-defense and that this right properly applies

against both state and federal governments. Id. at

257-68. When the book first advanced these claims,

they lay at the outer margins of mainstream

constitutional scholarship and Supreme Court case

2 See Akhil Reed Amar, The Bill of Rights as a Constitution, 100

Yale L.J. 1131 (1991); Akhil Reed Amar, The Bill of Rights and

the Fourteenth Amendment, 101 Yale L.J. 1193 (1992).

3

law. Yet in recent years, this Court has thoughtfully

considered the book’s suggestions in landmark cases

involving personal weapons of self-defense, and the

individual right to self-defense is today the law of the

land. See, e.g., McDonald v. City of Chicago, 561 U.S.

742, 770, 774-5 (2010); id. at 832 (Thomas, J.,

concurring in part and concurring in the judgment);

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S.

1, 37-38 (2022).

Second and third, the 1998 book and its

precursor articles raised questions about how the

First

Amendment’s

treatment

of

religious

establishments might best be meshed with the

Fourteenth Amendment’s guarantees of equal

citizenship and equal free exercise; and how best to

think about the relationship of the Fourth

Amendment’s warrant clause to its reasonableness

clause. Amar, The Bill of Rights, at 68-77, 246-54. On

many occasions, members of this Court have engaged

with the book’s analysis of these important issues.

See, e.g., California v. Acevedo, 500 U.S. 565, 581-84

(1991) (Scalia, J. concurring); Lee v. Weisman, 505

U.S. 577, 620 (1992) (Souter, J., concurring); Atwater

v. City of Lago Vista, 532 U.S. 318, 332 n.6, 336, 339

n.10 (2001); Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S.1, 50-53 (2004) (Thomas, J., concurring in the

judgment); Virginia v. Moore, 553 U.S. 164, 170

(2008); Town of Greece v. Galloway, 572 U.S. 565, 60407 (2014) (Thomas, J., concurring in part, and

concurring in the judgment); Riley v. California, 573

U.S. 373, 404 (2014) (Alito, J., concurring in part, and

concurring in the judgment).

4

Fourth, and central to today’s case: The 1998

book took issue with the 1970 case of Williams v.

Florida, 399 U.S. 78 (1970), and its approval of sixperson juries in serious criminal cases. Amar, The Bill

of Rights, at 108, 289-90, 394 n.26. As the next Part

of this brief will show, Williams was egregiously

wrong. Today’s case offers the Court a chance to tidy

up yet another messy corner of rights doctrine and in

the process to bring this Court’s case law into proper

alignment with the Constitution itself.

Part II. On Juries 3

Why twelve? Why not six or seven or ten or

eleven?

Although the line between empaneling only

eleven jurors as a general rule in a serious criminal

trial (impermissible!) 4 and twelve (perfect!) might

3 Part II of this brief borrows heavily from Akhil Reed Amar,

America’s Unwritten Constitution 442-43 (2012). Although much

more could be said here about Anglo-American jury history and

the near-sacred nature of the number twelve, Petitioner’s Brief

covers this ground extremely well, and amicus is mindful of this

Court’s Rule 37, admonishing amici to focus on “relevant matter

not already brought to its attention by the parties.”

4 The issue before the Court today concerns the “general rule” of

jury size. This issue is thus conceptually distinct from the

unusual case in which an eleven-person jury becomes necessary

or desirable after twelve persons are properly empaneled at the

trial’s outset and one juror becomes unavailable after the trial

has commenced. Compare Insurance Co. v. Morse, 87 U.S. (20

Wall.) 445, 451 (1874) (“In a criminal case, [a defendant]

cannot . . . be tried in any other manner than by a jury of twelve

men, although he consent in open court to be tried by a jury of

eleven men.”) (dictum), with Patton v. United States, 281 U.S.

5

look arbitrary as a matter of pure logic, this line has

a vast amount of pre- and post-Founding history

behind it. Virtually all eighteenth-century criminal

juries in England, the American colonies, and the

newly independent states had twelve members.

William Penn; John Peter Zenger; the Boston

Massacre defendants, represented by John Adams—

all were tried by juries featuring twelve persons, and

not one fewer. 5

Thus, the number twelve was implicit in the

word “jury” itself, as that word was generally

understood and embodied in 1787-91: A criminal trial

jury was, in a phrase dating back to the seventeenth

century, “twelve good men, and true.” Amar,

America’s Unwritten Constitution, at 442-43

(emphasis added). At the Founding, to be sure,

“twelve good men” meant twelve men. But the

Constitution as amended—most notably by the

Fifteenth, Nineteenth, Twenty-Fourth, and TwentySixth Amendments—today guarantees juries of

twelve persons, White or Black, male or female,

landed or landless, eighteen or eighty. 6

276 (1930) (holding contra, without so much as mentioning

Morse); see also Fed. R. Crim. P. 23(b).

5 On Penn, see Amar, America’s Unwritten Constitution, at 42324; on Zenger, see Amar, The Bill of Rights, at 84-85, 301; and

on the Boston Massacre and Adams, see Akhil Reed Amar, The

Words That Made Us: America’s Constitutional Conversation,

1760-1840, at 74-75 (2021).

6 See Amar, The Bill of Rights, at 272-74 & n*; Akhil Reed Amar,

America’s Constitution: A Biography 400 & n*, 426-28, 612-13

n.106, 619-21 nn.51-52 (2005); Amar, America’s Unwritten

Constitution, at 277, 287-89, 563 n.9.

6

America’s lived tradition—the post-1787 gloss

placed on the word “jury” by early and unbroken

federal practice, and the kindred practices of almost

every state, operating under similarly worded state

constitutions—further confirms that twelve is the

magic number.

The Court’s blasé ruling in Williams cut

against the near-universal assumption of virtually

every judge and justice who had addressed the issue

prior to 1968, when the Court in Duncan v. Louisiana,

391 U.S. 145 (1968), properly held that the

Fourteenth

Amendment

applied

America’s

fundamental criminal-jury right against states. See

Amar, The Bill of Rights, at 290; Thompson v. Utah,

170 U. S. 343, 349 (1898) (“[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.”); Patton v.

United States, 281 U.S. 276, 288 (1930) (affirming

that it “is not open to question” that a “jury should

consist of twelve”); Williams, 399 U.S. at 122 (Harlan,

J., concurring in the result) (“[B]efore today it would

have been unthinkable to suggest that the Sixth

Amendment’s right to a trial by jury is satisfied by a

jury of six.”); id. at 116-17 (Marshall, J., dissenting)

(“I adhere to the decision of the Court in Thompson v.

Utah that the jury guaranteed by the Sixth

Amendment consists ‘of twelve persons, neither more

nor less.’ . . . Thompson was right when decided and

still states sound doctrine. I am equally convinced

that the requirement of 12 should be applied to the

States.”) (citation omitted).

7

True, some erosion occurred in various states

long after the Founding. But even in 1970 (when the

Williams Court misread the Sixth and Fourteenth

Amendments to permit six-person juries as a rule in

serious felony cases), the overwhelming majority of

states—forty-five, to be precise, accounting for

roughly 85 percent of the nation’s population—used

twelve-person juries for all serious crimes, as did the

federal government. Williams, 399 U.S. at 98-99 n.45.

Thus, it is clear that six jurors do not a jury

make, whether this Court today focuses on 1787-91

(when the jury language of Article III and the Sixth

Amendment sprang to life), or 1866-68 (when the

Fourteenth Amendment was drafted and adopted to

apply fundamental rights of citizens and persons

against states and localities, including the right to a

proper criminal jury in cases of serious crime), or 1970

(when the Williams Court sat, and erred), or 2026-27

(under a proper Glucksberg-style counting of current

state practice). 7

Part III. On Precedent and Overruling 8

That Williams was wrongly decided is the easy

part of today’s case. The harder part is the remedy. If

See Washington v. Glucksberg, 521 U.S. 702, 710-11 (1997)

(opinion of the Court) (Rehnquist, C.J.) (canvassing state

practice in analyzing a claimed constitutional right against

states); see also Bruen, 597 U.S. at 79-80 (Kavanaugh, J.,

concurring) (describing the state law at issue as an “outlier”

among the states and repeatedly noting that “43 states”

employed a different regime).

8 Part III of this brief borrows heavily from Amar, America’s

Unwritten Constitution, at 234-241.

7

8

this Court concludes that Williams was wrong as a

matter of constitutional interpretation, may it

overrule that precedent for that reason alone? Must it

do so? How should the Court treat a confessedly

wrong constitutional precedent going forward, and

what relief—if any—is owed to those whose rights

have already been denied?

In a nutshell: Both the Constitution and this

Court’s own meta-precedents (that is, its precedents

about precedent) oblige the Court to say what the law

is, and to tell the American people that a prior case

deviated from the supreme law of the land. Then, and

distinctly (for rights are distinct from remedies), the

Court may decide to overturn the precedent for no

other reason than that it got the Constitution wrong;

or it may properly pause before doing so when

structural and/or equitable principles, including

reliance, so dictate. But in today’s case—Petitioner

Kian’s case—neither structural nor equitable

principles justify continued adherence to Williams,

which mangled the core meaning of a clear

constitutional right. Petitioner Kian deserves a

proper retrial with a proper twelve-person jury. Ditto

for all similarly situated defendants whose verdicts

have not yet been blessed by this Court on direct

review. Cases brought by future habeas petitioners

will implicate different considerations, as shall be

discussed in more detail infra Part IV.

A. On Rights Declaration

This Court’s duty is to say what the law is, even

(indeed, especially) when this Court previously got

the supreme law—the Constitution—badly wrong.

9

True, Article III structures the Supreme Court

as a continuous body. The Court never automatically

turns over, as the House does every two years and the

presidency does every four. A continuing body is

designed to give some weight to its past and some

thought to its future. It does not invent itself anew

each day. Given the Court’s clear constitutional

architecture, today’s justices may properly give past

Court decisions a rebuttable presumption of

correctness. A past case—horizontal precedent—may

control until proved wrong, with those challenging it

saddled with the burden of proof.

Precedent also operates with special force

vertically, when this Court, the “supreme” Court, lays

down the law for “inferior” courts. U.S. Const. art. III,

§ 1. And precedent may carry special weight in cases

involving mere statutory construction or common-law

rulings, or in constitutional cases in which the issue

is not what the Constitution in fact means, but only

how it might best be implemented, doctrinally—

whether, say, to use this four-part test or that threefactor framework.

But today’s Court in this case confronts an

entirely different situation, involving the core

meaning of a bedrock constitutional right. If any

member of today’s Court is convinced, based on Part

II of this brief or for any other reason, that Williams

misread — indeed, mangled — the written

Constitution, then the judicial oath of office to the

Constitution generally obliges that justice to follow

the Constitution itself, and not Williams. Just as this

Court under Marbury is generally obliged not to

enforce constitutionally erroneous statutes passed by

10

Congress, so too is this Court generally obliged not to

follow its own constitutionally erroneous precedents.

This basic principle of constitutional text and

structure is strongly confirmed by this Court’s actual

precedents—that is, its precedents on precedent, its

meta-precedents, so to speak.

At least seven times in the twentieth

century alone, this Court overruled itself in a

constitutional case simply and solely because

the Court believed that the prior case was

wrongly decided as a matter of constitutional

meaning. Modern stare decisis “factors” emphasized

by Respondent—factors like workability, consistency

with other case law, and compatibility with

subsequent factual developments—played no role in

these cases and were not necessary to the Court’s

decision to overrule.

1. Fox Film Corp. v. Doyal, 286 U.S. 123 (1932)

(overruling Long v. Rockwood, 277 U.S. 142

(1928)) (federal immunity from state taxation);

2. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)

(overruling Swift v. Tyson, 41 U.S. (16 Pet.) 1

(1842)) (federal general common law);

3. O’Malley v. Woodrough, 307 U.S. 277 (1939)

(overruling Evans v. Gore, 253 U.S. 245 (1920)

and Miles v. Graham, 268 U.S. 501 (1925))

(taxation of Article III salary);

4. West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) (overruling Minersville

11

Sch. Dist. v. Gobitis, 310 U.S. 586 (1940)) (free

expression);

5. Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968) (overruling Hodges v. United States, 203

U.S. 1 (1906)) (congressional power under the

Thirteenth Amendment);

6. Michelin Tire Corp. v. Wages, 423 U.S. 276

(1976) (overruling Low v. Austin, 80 U.S. (13

Wall.) 29 (1871)) (state taxation of imports);

7. Daniels v. Williams, 474 U.S. 327 (1986)

(overruling Parratt v. Taylor, 451 U.S. 527

(1981)) (due process).

These seven precedents span decades and cover

a wide range of constitutional questions. This set of

seven includes several truly iconic decisions,

household names in legal households—most notably,

Erie and Barnette. None of these seven overruling

precedents has itself ever been overruled.

Taken as a group, these meta-precedential

cases confirm that today’s Court may indeed properly

overrule yesterday’s case, Williams, simply because

Williams grossly misinterpreted the Constitution—

and strongly suggest that today’s Court should do so,

absent certain special countervailing considerations

(which this brief analyzes in Section III.C and Part IV

infra).

If this Court generally felt free (or obliged!) to

follow clearly erroneous case law concerning the core

meaning of the Constitution, then the foundational

12

document might ultimately be wholly eclipsed.

Rather than simply filling the document’s gaps,

judicial doctrine would erase its outlines. If the

written Constitution indeed contemplated this odd

result, one would expect to see a rather clear

statement to that effect: “This Constitution may be

wholly

superseded

by

conceded

judicial

misinterpretations; all branches are oath-bound to

follow

these

misinterpretations,

howsoever

egregious.” But the Constitution says nothing of the

sort. On the contrary, it explicitly and selfreferentially obliges all officials to swear oaths to

itself,

not

to

conceded

and

egregious

misinterpretations of it. U.S. Const. art. VI.

Indeed, the Constitution establishes a system

of coordinate powers. If neither the legislature nor the

executive may unilaterally change the document’s

meaning, see Trump v. Barbara, 146 S. Ct. 2438

(2026), why may the judiciary? The Constitution

details elaborate checks and balances. If conceded

misinterpretations become the supreme law of the

land, what checks adequately limit judicial selfaggrandizement? Prior to the Constitution’s

ratification, none of its prominent supporters

suggested that egregious judicial misconstructions

would bind successor judges. Rather, the basic

structure of the document suggested to ratifiers that

whatever “We the People” deliberately laid down

could not be changed, except by a later amendment

reflecting wide and deep popular approval.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803), Chief Justice Marshall declared that the

American people’s “original right to establish, for

13

their future government, such principles as, in their

opinion, shall most conduce to their own happiness”

was “the basis, on which the whole American fabric

has been erected.” Id. at 176. Marshall went on to

observe that “[t]he exercise of this original right is a

very great exertion; nor can it, nor ought it to be

frequently repeated. The principles, therefore, so

established, are deemed fundamental. And as the

authority, from which they proceed, is supreme, and

can seldom act, they are designed to be permanent.”

Id. Given that acts of constitution and amendment

require great popular exertion that cannot be

expected or desired to occur routinely, it seems

perverse to insist that We the People must repeat

what We proclaimed whenever judges garble what We

proclaimed the first time.

The basic structural argument is that

Marbury-style judicial review presupposes that

judges are enforcing the People’s document, not their

own deviations. Departures from the document—

amendments—should come from the People, not from

the high court. Otherwise, we are left with

constitutionalism without the Constitution, popular

sovereignty without the People.

B. On Remedies

So, this Court may overrule a past case

whenever it believes that the past case plainly

misinterpreted the central meaning of some part of

the Constitution. But must it do so?

Not quite. Several moderating structural and

remedial ideas come into play—“equitable”

14

considerations that Article III allows to be taken into

account. (That article of course features language

explicitly empowering federal courts to hear cases “in

Law and Equity” arising under “this Constitution.”)

One structural and equitable notion may be

stated as follows: Once We the People have struggled

to put a rule or principle in the document, that rule or

principle should not be altered, except by the people

themselves.

On this view, an erroneous precedent that

improperly deviates from the written Constitution

may in some situations stand if the precedent is later

championed not merely by the Court, but also by the

people. When the citizenry has widely and

enthusiastically embraced an erroneous precedent—

when even most initial skeptics have deemed the

precedent to be fundamental and admirable—a court

of equity may sometimes, consistent with the

document’s emphasis on popular sovereignty, view

this precedent as sufficiently ratified by the American

people so as to insulate it from judicial overruling.

This is especially true if the erroneous precedent

recognized an unenumerated right before its time.

An example: Let’s assume arguendo that

Miranda v. Arizona, 384 U.S. 436 (1966), was wrong

when it was handed down in 1966. Let’s assume

further that because of shifts in popular culture,

including the hit TV show Dragnet, Miranda quickly

caught fire and captured the imagination of a wide

swathe of citizens. If so, then Miranda at some point

arguably became a proper Ninth Amendment/

Glucksberg-style entitlement even though the Court

15

(by hypothesis) jumped the Fifth Amendment gun in

1966.

This line of analysis helps explain the central

intuition of Chief Justice Rehnquist that Miranda has

“become part of our national culture” in his opinion

reaffirming Miranda for the Court in Dickerson v.

United States, 530 U.S. 428, 443 (2000), even though

the Chief had been a fierce critic of Miranda in earlier

years. (It bears remembering that Chief Justice

Rehnquist in 1997 had authored Glucksberg.)

In

certain

Glucksberg

situations,

unenumerated constitutional rights encompass,

among other things, those basic rights that the people

at large, in practice and in fact, believe that they have

and should have under the Constitution. If enough

people believe in a given right and view it as

fundamental, then that right can—in certain

situations—become a proper, albeit unenumerated,

right of the people: a basic privilege of citizenship as

understood by citizens themselves. It usually does not

matter how the people’s belief arose—even if it arose

as a result of a Supreme Court case that was wrong

as a matter of text and original intent when decided.

Thus, if the Court at time T1 gets the

Constitution’s text and original understanding wrong

and proclaims a right that does not in fact properly

exist at time T1, and if the vast majority of Americans

come to rejoice in this right, the Court at time T2

should affirm the originally erroneous precedent. Cf.

Dickerson. The case, though wrong when decided, has

become right thanks to an intervening change of

fact—broad and deep popular endorsement— that the

16

Constitution’s own text, via the Ninth and Fourteenth

Amendments, endows with special significance.

But here is a crucial asymmetry: A case

such as Williams, which construes a textual

constitutional right too narrowly, is quite

different from a case (arguably, Miranda) that

construes a textual constitutional right too

broadly. Even if both cases come to be widely

embraced by the citizenry, only the rights-expanding

case (Miranda, in this example) interacts with the

text of the Ninth and Fourteenth Amendments so as

to specially immunize it from subsequent reversal. In

other words, unenumerated rights, including those

ratifying erroneous judicial precedents, may go above

and beyond the textually enumerated rights, but they

may never dilute or underenforce those rights. Cf.

Katzenbach v. Morgan, 384 U.S. 641, 651 n.10 (1966)

(explaining that Congress, acting pursuant to Section

5 of the Fourteenth Amendment, may at times

properly go above the floor of Section 1 rights as

enforced by courts, but not below).

A second equitable principle—reliance,

prominent in judicial decisions stretching back

hundreds of years—directs judges to give due weight

to the ways in which litigants who come before the

Court may have reasonably relied upon prior case

law. Judicial power, by its nature, is retrospective.

The judiciary applies law to transactions that have

already occurred. Erroneous precedents create facts

on the ground that properly influence the application

of retrospective judicial power. In some cases, these

facts limit the Court’s ability to abruptly change

course, even if persuaded of past error. For example,

17

even if the Court were tomorrow to deem erroneous

its long-standing precedents upholding the

constitutionality of paper money, surely the justices

could not ignore the vast economic system that has

built up in reliance on greenbacks. Cf. Trump v. Cook,

143 S. Ct. 2234 (2026) (Kavanaugh, J., concurring).

Erroneous precedents are not unique in this

respect. Prior unconstitutional conduct of other

branches may likewise create faits accomplis that

courts cannot easily undo after the fact. A sound

structural and equitable approach would respect the

general coordinacy of the three branches and would

recognize that judges must have due regard for facts

on the ground created by prior actions of all branches

and levels of government. This feature of judicial

underenforcement is built into the very structure of

Article III, under which judicial review can

sometimes occur long after certain practices have

become settled and virtually impossible for courts to

reverse.

Impossible for courts to reverse—but not

necessarily for legislatures. A prior erroneous Court

ruling does not properly amend the Constitution, and

other branches of government may be able to return

to a constitutionally proper regime by acting purely

prospectively in a way that judges perhaps should

not. Imagine, for example, a statute proposing a

gradual ten-year phase-in of a new, more

constitutionally appropriate regime to replace the old

case law that the Court now admits was erroneous.

Were the Court itself to announce such a purely

prospective phase-in, this announcement might

strain the traditional boundaries of proper “judicial

18

Power,” precisely because the announcement would

look purely “legislative” in nature. But legislatures, of

course, typically act in precisely this purely

prospective fashion, and phase-in statutes are

commonplace.

It is thus important for today’s Court to tell the

public if the justices erred in Williams, precisely so

that the other branches may ponder their

constitutionally permissible options.

The Court’s duty, then, is not to avoid deciding

whether precedent rightly or wrongly interpreted the

Constitution. Rather, the judicial duty is first (in its

role as rights-declarer) to admit error whenever the

Court finds that error has occurred, and then second

(in its role as remedy-provider) to consider whether

special reliance interests apply and how those

interests might limit the use of retrospective judicial

power. Cf. Marbury, 5 U.S. at 154 (treating the

judicial recognition of a right as conceptually distinct

from the availability of a judicial remedy).

In other words, the Court’s province and duty

is to say what the law is—the law of the Constitution,

of course. If, in the process, the Court decides that this

supreme law has been violated, whether by a state

law, a federal law, or a presidential proclamation—or

a past ruling of the Court itself—the justices should

declare that fact and then do their best to analyze

how, if at all, this wrong might be righted, and by

whom. Cf. Ramos, 590 U.S. at 105 (“[S]tare decisis

isn’t supposed to be the art of methodically ignoring

what everyone knows to be true.”). When the Court

itself is the source of a constitutional wrong, as it was

19

in Williams, it has a particular obligation to help right

that wrong, or at least to identify how the wrong could

be righted by sister branches.

Happily, the Constitution and the case law on

issues of meta-precedent cohere. What the text says

about itself (the text) and what it says about

precedent mesh nicely with what the precedents say

about the text and what the precedents say about

themselves (the precedents). Though the issues in

today’s case might seem rather small in the grand

scheme of things, they offer this Court a very special

opportunity to clarify first principles of text, history,

structure, and precedent.

Indeed, today’s case is all the easier because, as

Petitioner’s brief explains in careful detail, a recent

precedential development—a landmark decision of

this Court that postdates Williams—undercuts the

conceptual foundations of that ill-reasoned 1970

ruling. See Ramos, 590 U.S. at 90 (insisting on jury

unanimity in both federal and state criminal cases of

a serious nature). Quoting underlying authorities,

Ramos itself thrice referred to a “unanimous” jury of

“twelve.” Id. at 90, 92, 96 n.38; see also id. at 100 n.46.

Kian’s resolution is thus arguably implicit in Ramos’s

holding and reasoning. On this broad reading of

Ramos, the Court has already acknowledged, contra

Williams, that the Constitution requires twelve votes

to convict a criminal defendant of a serious crime. Ten

out of twelve is not sufficient, and ten out of ten is not

either.

Even if it wanted to, then, today’s Court cannot

simply invoke the mindless mantra of “precedent,

20

precedent, precedent.” The precedents themselves

conflict at their very foundations. Either today’s Court

follows the clean substantive and methodological logic

of Ramos (which of course overruled the 1972 Apodaca

case, 9 a close cousin of the 1970 Williams case, and

did so with pointed fidelity to the Constitution’s text,

structure, and original meaning); or today’s Court

perpetuates the mushy mess and constitutional

infidelity of Williams. 10

C. On Reliance 11

Properly understood, reliance should not

become a magic shield to insulate all previous judicial

error. Rather, reliance, when deployed to insulate

prior judicial error, must be understood precisely and

narrowly. One key equitable idea is that litigants,

especially private litigants, who structured their

conduct around an erroneous precedent should, if

possible, not be rendered grossly worse off than if that

erroneous precedent had never existed.

Imagine, for example, that in 2016, this Court

had ruled in the hypothetical case of Rosey v. Dosey

that the malum prohibitum Florida law at issue

9 The Court in Apodaca v. Oregon, 406 U.S. 404 (1972), upheld a

nonunanimous jury conviction in a case involving a serious

crime.

10 According to existing doctrine, a six-person “jury” is just fine,

see Williams, but not a five-person jury, see Ballew v. Georgia,

435 U.S. 223 (1978). Where in the world did this utterly

arbitrary line come from? Here too, we see that the precedents

conflict at their very foundation.

11 Part III.C of this brief borrows from Akhil Reed Amar, Heller,

HLR, and Holistic Legal Reasoning, 122 Harv. L. Rev. 145, 15661 (2008).

21

today—Fla. Stat. § 460.411(1)(b), criminalizing the

unauthorized practice of chiropractic medicine—was

unconstitutional under, say, the doctrine of

substantive due process. Imagine further that a

hypothetical law-abiding citizen, Kamed Hian,

practiced chiropractic medicine in 2025 without a

license, notwithstanding the formal existence on the

books of Fla. Stat. § 460.411(1)(b), because Hian

correctly believed that his conduct was in every

relevant respect identical to the conduct at issue in

Rosey v. Dosey. Were the Court today to deem Rosey

v. Dosey clearly erroneous and squarely overrule it,

Hian’s unauthorized practice of chiropractic medicine

in 2025 should never subject him to prosecution or

penalty. In this hypothetical, Hian relied on Rosey v.

Dosey in a rather obvious way: Had that precedent

never existed, the scrupulously law-abiding Hian

would not have practiced chiropractic medicine

because he would have understood that Fla. Stat.

§ 460.411(1)(b) fully applied to his conduct. To punish

or penalize Hian for his 2025 conduct would render

him grossly worse off than he would have been had

the erroneous Rosey v. Dosey case never existed.

Punishment of Hian would be inequitable and

perhaps also violate his due-process-and-rule-of-law

right to fair notice. Cf. United States v. Harriss, 347

U. S. 612, 617 (1954) (“[N]o man shall be held

criminally responsible for conduct which he could not

reasonably understand to be proscribed.”); Cox v.

Louisiana, 379 U.S. 536, 571 (1965) (condemning

“entrapment by the State—convicting a citizen for

exercising a privilege which the State had clearly told

him was available to him”).

22

In this hypothetical, even though Rosey v.

Dosey should be overruled today—because the Court

now views it as plainly erroneous—the Court would

need to attend to the reliance interests that it itself

created back in Rosey v. Dosey and should try to

minimize the degree to which persons are made

grossly worse off than they would have been had Rosey

v. Dosey never existed.

Part IV. On Habeas

Today’s case involving the very real Hamed

Kian is of course sharply distinct from the case of the

entirely hypothetical Kamed Hian. Williams v.

Florida underread a key constitutional right of a

private person rather than overreading a private

right as did the hypothetical case of Rosey v. Dosey.

How then should today’s Court proceed after it

declares that Williams was wrong and is no longer

good law?

In Kian’s case and in all pending cases on direct

review, the Court should vacate the conviction and

allow the state government to reprosecute before a

properly constituted twelve-person jury. Under the

sound and well-established doctrine of continuing

jeopardy, double-jeopardy principles of course pose no

bar to retrial. See Burks v. United States, 437 U.S. 1,

14-18 (1978); see also Akhil Reed Amar, Double

Jeopardy Law Made Simple, 106 Yale L.J. 1806,

1842-45 (1997). The government in each retrial must

endure some expense, but it has only itself to blame.

Nothing in Williams required Florida or any other

state government to skimp on juries and flout basic

principles that have always applied in all federal

23

courts and have almost always applied in almost all

state courts. Each defendant, too, of course, must

endure a second trial, alas, but this is the inescapable

cost of the strong and legitimate interest of society to

fairly try the matter.

In future cases on habeas, the Court will need

to make hard choices. (It need not make these choices

today, unless it is so inclined.) Here are the basic

options, as amicus now sees the matter.

First, the Court could vacate all convictions,

while permitting retrial, just as on direct review. The

theory here would be that a six-person jury is not a

proper jury at all. Legally, it is as if all these persons

are currently being held extrajudicially, with no

proper conviction to warrant their continued

incarceration.

But the number of possible cases here is

perhaps astronomical, unlike the handful of cases

now pending on direct review. Many of these habeas

cases involve facts from long ago, where evidence has

now faded or disappeared entirely, and where key

witnesses have moved away or died. In many

situations, a fair retrial may no longer be possible.

States and crime victims would thus be rendered

massively worse off than they would have been had

Williams been decided rightly back in 1970, and had

states thereafter used proper twelve-person juries.

Second, today’s (or tomorrow’s) Court could say

that today’s ruling is categorically unavailable to

habeas petitioners. Each defendant, it could be said,

did in fact get a jury of sorts, even if not a perfect one.

24

On this view, the issue is not truly identical to extrajudicial incarcerations. Rather, a pro-defendant

ruling in today’s case is essentially a “new” rule, and

habeas does not apply to new rules. See Teague v.

Lane, 489 U.S. 288 (1989); Edwards v. Vannoy, 593

U.S. 255 (2021). If a Batson-defective jury 12 is a good

enough jury for habeas purposes, see Teague, and a

Ramos-defective jury is a good enough jury for habeas

purposes, see Edwards, so too a size-defective jury is

good enough for habeas purposes.

But really? A ruling today for Hamed Kian

would not in truth be a “new” judge-made rule.

Rather, such a ruling would simply restore what

almost all sound jurists thought the law was in the

decades—centuries!—before Justice Byron White and

some others on the Burger Court blithely gave the

Constitution the back of their judicial hand in

Williams. To apply today’s ruling fully retroactively

would be to apply the law that clearly should have

applied back in 1970 and in every year before and

after. Cf. Desist v. United States, 394 U.S. 244, 263

(1969) (Harlan, J., dissenting) (distinguishing

between a “new” rule that should not apply in habeas

and a situation in which the Court has “simply

applied a well-established constitutional principle to

govern a case which is closely analogous to those

which have been previously considered in the prior

case law”).

12 The Court in Batson v. Kentucky, 476 U.S. 79 (1986), ruled that

the Constitution prohibits race-based peremptory challenges

and structured a judicial process for implementing this

prohibition.

25

Put differently, Williams was obviously wrong

the day it was decided. A rose is a rose is a rose; a jury

is a jury is a jury. An American criminal jury has

always meant twelve, as a general rule, as anyone in

1970 should have known, if for no other reason than

Henry Fonda in the unforgettable 1957 movie with

the iconic title, Twelve Angry Men. (Had there only

been six jurors, there would have been a fifty-fifty

chance that the Fonda character would not even have

made the cut!) See generally Kirk Semple, The Movie

That Made a Supreme Court Justice, N.Y. Times (Oct.

17, 2010).

On this view, a Batson-defective jury is still a

jury of sorts, and so is a Ramos-defective jury. But a

six-person thing is simply not a jury at all and never

was a jury, and thus such a thing is and always has

been a clear violation of the jury-mandate rule that

this Court laid down way back in Duncan v. Louisiana

in 1968, even before Williams. The ancient definition

was never “twelve good men, and true and

unanimous.” But it was always “twelve good men, and

true.” If Teague means that truly new rules do not

properly apply in habeas, the new rule, in truth, is not

the age-old rule that Petitioner and amicus seek to

revive today, but rather the astonishingly new rule

that the Williams majority simply made up back in

1970. Recall Justice Harlan’s honest reminder in

Williams: “[B]efore today it would have been

unthinkable to suggest that the Sixth Amendment’s

right to a trial by jury is satisfied by a jury of six.”

Williams, 399 U.S. at 122 (Harlan, J., concurring in

the result) (emphasis added).

26

A third approach would distinguish pre-Ramos

convictions from post-Ramos convictions. On this

view, as powerfully elaborated in Petitioner’s brief

and discussed above, the deep logic of Ramos itself

overruled Williams, albeit sub silentio, and put all

states on notice that they were obliged to honor

criminal defendants’ Sixth Amendment and

Fourteenth Amendment jury rights as originally

understood. All undersized jury convictions that

became final after Ramos occurred, essentially,

without the blessing of this Court and at the states’

own risk—occurred not in express compliance with

Williams but rather in implicit violation of Ramos. All

such convictions should be voided on habeas (with

future retrials permitted, of course) under the strict

logic of Teague, and in line with Justice Harlan’s

analysis in Desist. As a practical matter, it will

generally be easier to retry the warehouse-size stack

of relatively recent post-Ramos cases than to retry the

mountain-size and much older pile of all postWilliams cases.

A fourth approach would be to use harmlesserror analysis to distinguish close cases, where six

more jurors might well have changed the trial

outcome long ago, from the mine-run of cases where

twelve jurors would quite likely have done the same

thing that six jurors in fact did. There are doubtless a

wide variety of ways for today’s (or tomorrow’s) Court

to allocate burdens of proof in these harmless-error

inquiries.

A fifth approach, which has all the virtues and

all the vices of extreme formalism, is to allow habeas

claims only in the tiny handful of cases in which the

27

inadequate-jury issue was in fact squarely raised

before or at trial by defendant’s counsel. On this view,

defendants who agreed to smaller juries essentially

waived their right to a full-sized jury. And they did

get something of value in exchange for this implicit

waiver: the possibility of full acquittal by a smaller

jury, whereas a larger jury might well have simply

deadlocked and thus subjected them to a higher risk

of immediate retrial.

The choice among these above-catalogued

options will best be made in a later habeas case or

series of habeas cases brought to this Court—

presumably with detailed briefing on, among other

things, the precise numbers, dates, and offensegrades of skimpy-jury guilty verdicts in each affected

state. See Ramos, 590 U.S. at 109 (overturning a

precedent and reserving the retroactivity question for

a future case). Amicus candidly concedes that none of

the five options canvassed above is wildly attractive,

given the fact that so many trials have occurred over

so long a time under a regime that was, is, and always

has been, so clearly constitutionally defective. Most of

the fault for this sorry state of affairs does not fall

upon the current members of this Court. But one

lesson that today’s justices should take home is this:

Bad things usually ensue when this Court for decades

turns a blind eye to the plain meaning of core

constitutional rights.

***

To recap: Williams was, when decided, and

remains today, egregiously wrong and should thus be

tossed on the ash-heap of history alongside the likes

28

of Plessy v. Ferguson, 163 U.S. 537 (1896), and

Gobitis. The transition to a proper new criminal-jury

regime in a handful of states may well involve hard

remedial choices—choices that need not be made by

today’s Court.

On the jury-size issue, the sole dissenter in

Williams, the great Thurgood Marshall, was plainly

right, just as the sole dissenter in Plessy, the great

John Marshall Harlan, was plainly right, and the sole

dissenter in Gobitis, the great Harlan Fiske Stone,

was plainly right. In its landmark decisions in Brown

v. Bd. of Educ., 347 U.S. 483 (1954), and Barnette, this

Court quite properly vindicated Justice Harlan and

Justice Stone. Today it should do the same for Justice

Marshall.

CONCLUSION

Amicus urges that this Court reverse the

judgment below and set aside Hamed Kian’s

constitutionally improper conviction.

Respectfully submitted,

Christopher Duggan*

Smith, Duggan, Cornell & Gollub, LLP

55 Old Bedford Road, Suite 300

Lincoln, MA 01773

Chris.Duggan@smithduggan.com

617-228-4444

Counsel for Amicus Curiae

*Counsel of Record

29