Amicus Curiae Brief — Hamed Kian, Petitioner v. Florida

No. 25-6623

IN THE

Supreme Court of the United States

HAMED KIAN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

On Writ of Certiorari to the

Florida District Court of Appeal

Fourth District

BRIEF FOR AMICUS CURIAE THE

UNITED STATES CONFERENCE OF CATHOLIC

BISHOPS IN SUPPORT OF PETITIONER

WILLIAM J. QUINN

UNITED STATES

CONFERENCE OF

CATHOLIC BISHOPS

3211 Fourth St., NE

Washington, DC 20017

NOEL J. FRANCISCO

Counsel of Record

ANTHONY J. DICK

JOHN C. BRINKERHOFF JR.

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

njfrancisco@jonesday.com

AMANDA K. RICE

JONES DAY

150 W. Jefferson Street

Suite 2100

Detroit, MI 48226-4438

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................4

I.

THE CATHOLIC CHURCH PLAYED AN

IMPORTANT ROLE IN THE DEVELOPMENT OF

JURIES AND OTHER STRUCTURAL

SAFEGUARDS IN CRIMINAL TRIALS. ...............4

II.

AT THE TIME THE SIXTH AMENDMENT WAS

RATIFIED, THE TERM “JURY”

UNAMBIGUOUSLY REFERRED TO A GROUP OF

TWELVE. .......................................................8

III.

AS A MATTER OF ORIGINAL PUBLIC

MEANING, WILLIAMS V. FLORIDA IS

DEMONSTRABLY ERRONEOUS......................22

CONCLUSION ..........................................................29

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Apprendi v. New Jersey,

530 U.S. 466 (2000) .............................................. 29

Baldwin v. New York,

399 U.S. 66 (1970) ................................................ 28

Blakely v. Washington,

542 U.S. 296 (2004) .............................................. 29

Bowles v. State,

37 Tenn. 360 (1858) ............................................. 21

Burk v. State,

2 H&J 426 (Md. 1809) .......................................... 19

Bushel’s Case (1670)

124 Eng. Rep. 1006 .............................................. 14

Cancemi v. People,

18 N.Y. 128 (1858)................................................ 21

Capital Traction Co. v. Hof,

174 U.S. 1 (1899) .................................................. 21

CFPB v. Cmty. Fin. Servs. Ass’n of Am.,

601 U.S. 416 (2024) ................................................ 8

Coffin v. United States,

156 U.S. 432 (1895) ................................................ 4

iii

Cowles v. Buckman,

6 Iowa 161 (1858) ................................................. 21

Crawford v. State,

10 Tenn. 60 (1821) ............................................... 19

Crawford v. Washington,

541 U.S. 36 (2004) ................................................ 24

Dimick v. Schiedt,

293 U.S. 474 (1935) .............................................. 25

Dist. of Columbia v. Heller,

554 U.S. 570 (2008) .................................... 8, 26, 29

Doebler v. Commonwealth,

3 Serg. & Rawle 237 (Pa. 1817) ........................... 19

Duncan v. Louisiana,

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

Ex parte Wells,

59 U.S. (18 How.) 307 (1855) ............................... 26

Foote v. Lawrence,

1 Stew. 483 (Ala. 1828) ........................................ 19

Gamble v. United States,

587 U.S. 678 (2019) ........................ 8, 22, 23, 25, 28

Giles v. California,

554 U.S. 353 (2008) .............................................. 24

Hague v. Stratton,

8 Va. 84 (1786) ..................................................... 16

iv

Holmes v. Walton

(N.J. 1780) ............................................................ 16

Hurtado v. California,

110 U.S. 516 (1884) .............................................. 24

Jackson v. State,

6 Blackf. 461 (Ind. 1843) ...................................... 20

Kahler v. Kansas,

589 U.S. 271 (2020) .............................................. 13

Kilbourn v. Thompson,

103 U.S. 168 (1880) ................................................ 9

London v. Wood (1706)

88 Eng. Rep. 1592 ................................................ 14

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................. 22

Maxwell v. Dow,

176 U.S. 581 (1900) .............................................. 22

McDonald v. City of Chi.,

561 U.S. 742 (2010) ................................................ 8

N.Y. State Rifle & Pistol Ass’n v. Bruen,

597 U.S. 1 (2022) ............................................ 24, 25

Norval v. Rice,

2 Wis. 22 (1853) .................................................... 20

Opinion of Justices,

41 N.H. 550 (1860) ............................................... 20

v

Parsons v. Bedford,

28 U.S. 433 (1830) .......................................... 18, 29

Patton v. United States,

281 U.S. 276 (1930) .............................................. 21

Pena-Rodriguez v. Colorado,

580 U.S. 206 (2017) ................................................ 7

Phil. Cnty. Comm’rs v. Snowden,

2 Yeates 95 (Pa. 1796) ......................................... 19

Powell v. McCormack,

395 U.S. 486 (1969) .............................................. 26

Ramos v. Louisiana,

590 U.S. 83 (2020) .............................. 12, 22, 28, 29

Rassmussen v. United States,

197 U.S. 516 (1905) .............................................. 22

Respublica v. Shaffer,

1 Dall. 236 (Pa. O. & T. 1788)........................ 16, 17

Rex v. Lowfield (1731)

93 Eng. Rep. 952 .................................................. 14

Rex v. Pritchard (1733)

87 Eng. Rep. 1210 ................................................ 14

Robbins v. Windover,

2 Tyl. 11 (Vt. 1802)............................................... 19

Ross v. Neal,

23 Ky. 407 (1828) ................................................. 19

vi

Smith v. United States,

599 U.S. 236 (2023) .............................. 8, 18, 26, 27

State v. Burket,

9 S.C.L. 155 (1818) ............................................... 19

State v. Cox,

8 Ark. 436 (1848) ............................................ 20, 21

State v. Parkhurst,

9 N.J.L. 427 (1802) ............................................... 16

Thompson v. Utah,

170 U.S. 343 (1898) .............................................. 21

Torres v. Madrid,

592 U.S. 306 (2021) .............................................. 25

United States v. Brown,

996 F.3d 1171 (11th Cir. 2021)

(en banc) ................................................................. 7

United States v. Rahimi,

602 U.S. 680 (2024) .................................... 8, 25, 27

Vaughn v. Scade,

30 Mo. 600 (1860) ................................................. 21

Wharton’s Case (1601)

80 Eng. Rep. 17 .................................................... 14

Whitehurst v. Davis,

3 N.C. 113 (1800) ................................................. 19

Williams v. Florida,

399 U.S. 78 (1970) .......................................3, 22-29

vii

Wolfe v. Martin,

2 Miss. 30 (1834) .................................................. 19

Wolford v. Lopez,

146 S. Ct. 2032 (2026) .......................................... 25

Work v. State,

2 Ohio St. 296 (1853) ........................................... 20

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. VI ................................................. 9

N.J. Const. of 1776 art. XXII .................................... 16

OTHER AUTHORITIES

1 Annals of Cong. 435 (1789) .................................... 27

N. Bailey, An Universal Etymological

English Dictionary (21st ed. 1770) ........................ 9

John W. Baldwin, The Intellectual

Preparation for the Canon of 1215

Against Ordeals, 36 Speculum 613

(1961) ...................................................................... 6

Richard Baxter, The Saints’ Everlasting

Rest (1650) ............................................................ 12

William Blackstone, Commentaries.................... 13, 29

3 John Bouvier, Institutes of American

Law (1854) ............................................................ 21

viii

Sam Bray, When Catholicism Was Part

of the Common Law, in Faith in

Law, Law in Faith

(Rafael Domingo et al., eds. 2024) ......................... 5

Richard Brome, A Mad Couple Well

Match’d (1653)...................................................... 11

Richard & John Burn, A New Law

Dictionary (1792).................................................. 10

Catechism of the Catholic Church

(2d ed. 1997) ....................................................... 1, 7

1 Joseph Chitty, A Practical Treatise on

the Criminal Law (1819)...................................... 19

Code of Canon Law (Eng. trans. 1998) ....................... 6

1 Edward Coke, The First Part of the

Institutes of the Laws of England

(1628) ................................................................ 5, 13

The Complete Anti-Federalist

(H. Storing ed. 1981) ............................................ 18

Thomas M. Cooley, Treatise on the

Constitutional Limitations (1868) ....................... 20

Timothy Cunningham, 3 A New and

Complete Law Dictionary

(3d ed. 1783) ......................................................... 10

Debates on the Constitution

(J. Elliot ed. 1836) ................................................ 17

ix

1 A Dictionary of the English Language

(6th ed. 1785).......................................................... 9

The Documentary History of the Ratification

of the Constitution and the Bill of Rights

(John P. Kaminski et al. eds. 2022) ..................... 18

John Dryden, Epistle to the Whigs (1682), in

1 The Poetical Works of John Dryden

(George Gilfillan ed. 1855) ................................... 12

1 Giles Duncomb, Trials per Pais

(8th ed. 1766).......................................................... 5

Thomas Dyche & William Pardon, A

New General English Dictionary

(14th ed. 1771)........................................................ 9

Albert E. Wilson Eastman, The History

of Trial by Jury, 3 Nat’l Bar J. 87

(1945) ...................................................................... 5

Brian E. Ferme, Canon Law Culture of

Medieval England, 82 Periodica 27

(1993) ...................................................................... 4

Henry Fielding, The History of the Life

of the Late Mr. Jonathan Wild the

Great, in 3 Miscellanies 1

(2d ed. 1743) ......................................................... 12

Felix Frankfurter & Thomas G.

Corcoran, Petty Federal Offenses and

the Constitutional Guarantee of Trial

by Jury, 39 Harv. L. Rev. 917 (1926) ............ 12, 13

x

From Newcomers to Citizens All Come

Bearing Gifts, USCCB (1999) ................................ 7

General Fundamentals of Plymouth

(1636 & rev. 1671) ................................................ 15

Gratian, Concordia Discordantium

Canonum (Decretum) (c. 1140)

(E. Friedberg ed., 2d ed. 1879) .............................. 4

Robin Griffith-Jones, Magna Carta and

Religion, in Magna Carta: Muse and

Mentor (Randy J. Holland ed. 2014) ..................... 5

Roger D. Groot, The Early ThirteenthCentury Criminal Jury, in Twelve Good

Men and True: The Criminal Trial Jury

in England, 1200-1800 (J.S. Cockburn &

Thomas A. Green eds. 1988). ............................. 5, 6

2 Matthew Hale, History of the Pleas of

the Crown (1736) ............................................ 13, 14

Francis Hilliard, The Elements of Law

(2d ed. 1848) ......................................................... 20

The Honest Jury; or, Caleb Triumphant:

A New Ballad (1729) ............................................ 12

Giles Jacob, A New Law Dictionary

(10th ed. 1782)...................................................... 10

Thomas Jefferson, Notes on the State of

Virginia (1788) ..................................................... 15

xi

Pope John Paul II, Address to the

Tribunal of the Roman Rota

(Jan. 18, 1990) ........................................................ 6

1 Journals of the Continental Congress,

1774-1789 (Worthington C. Ford ed.,

1904) (1774) .......................................................... 15

William Kenrick, A New Dictionary of

the English Language (1773) ............................... 10

2 James Kent, Commentaries on

American Law (3d ed. 1836) ................................ 19

Pope Leo XIV, Address of the Holy

Father to the Prelates of the Roman

Rota (Jan. 26, 2026) ............................................... 6

Leviticus 19:15............................................................. 1

3 William Marriot, A New Law

Dictionary (1798).................................................. 10

Massachusetts Body of Liberties (1641),

in Sources of Our Liberties (Richard

L. Perry & John C. Cooper eds. 1959) ................. 15

Paul M. Matenaer, Public Access to

Criminal Trials in U.S. Law and

Canon Law, 2021 Wis. L. Rev. 891

(2021) ...................................................................... 4

Pope Pius XII, An International Code

for the Punishment of War Crimes,

28 St. John’s L. Rev. 1 (1953) ................................ 6

xii

Pontifical Council for Justice & Peace,

Compendium of the Social Doctrine

of the Church (2004) ........................................... 1, 6

I Frederick Pollock & Frederic W.

Maitland, The History of English

Law Before the Time of Edward I

(2d ed. 1903). .......................................................... 5

II Frederick Pollock & Frederic W.

Maitland, The History of English

Law Before the Time of Edward I

599 (2d ed. 1905) ........................................ 6, 12, 26

Roscoe Pound, The Development of

Constitutional Guarantees of Liberty

(1957) .................................................................... 16

Thomas Randolph, The Muses LookingGlasse (1638) ........................................................ 11

I The Records of the Colony of Plymouth

in New England: Laws 1623 to 1682

(David Pulsifer ed. 1861) ..................................... 15

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ....................................... 11, 24

William Shakespeare, Measure for

Measure (1623) ..................................................... 11

William Shakespeare, The Merchant of

Venice (1600) ........................................................ 11

Thomas Sheridan, A General Dictionary

of the English Language (1780) ........................... 10

xiii

J. Thayer, Evidence at the Common Law

(1898) .................................................................... 14

James B. Thayer, The Jury and Its

Development, 5 Harv. L. Rev. 295

(1892) .................................................................... 13

1 Alexis de Tocqueville, Democracy in

America (Henry Reeve trans.,

Schocken 1st ed. 1961) (1835) ............................... 7

USCCB, Responsibility, Rehabilitation,

and Restoration: A Catholic

Perspective on Crime and Criminal

Justice (2000) ......................................................... 7

Clement Walker, The Triall of Lieut.

Collonell John Lilburne (1649) ............................ 12

James Wilson, Lectures on Law: Of

Juries (1790), in 2 Collected Works of

James Wilson 985 (2007) ..................................... 20

1

INTEREST OF AMICUS CURIAE 1

Amicus the U.S. Conference of Catholic Bishops

(USCCB) is a nonprofit corporation whose members

are the active Catholic Bishops in the United States.

The USCCB provides a framework and forum for the

Bishops to teach Catholic doctrine, set pastoral

direction, and develop policy positions on

contemporary social issues.

On behalf of the

Christian faithful, the USCCB promotes the common

good and the Bishops’ pastoral teaching on a wide

range of issues such as the free expression of ideas,

immigration, fair employment and equal opportunity,

the rights of religious organizations, the dignity and

wellbeing of the vulnerable, the value of education,

the rights of parents and children, and the sanctity of

human life.

The USCCB’s interest in this suit stems from the

scriptural command to “judge your neighbor justly.”

Leviticus 19:15. The Catholic Church teaches that

political authorities are obligated to “dispense justice

humanely by respecting the rights of everyone.”

Catechism of the Catholic Church ¶ 2237 (2d ed.

1997); accord Pontifical Council for Justice & Peace,

Compendium of the Social Doctrine of the Church

¶ 404, at 173 (2004) (“The activity of offices charged

with establishing criminal responsibility … must be

conducted in full respect for the dignity and rights of

the human person [including] guaranteeing the rights

of the guilty ....”).

1 Counsel certifies that no party or counsel for a party

authored this brief in whole or in part. No entity, aside from

USCCB, its members, and its counsel, made any monetary

contribution toward the preparation or submission of this brief.

2

Particularly given the Church’s central role in

shaping the legal culture from which the common-law

jury emerged, the USCCB has a strong interest in the

proper development of this Court’s jurisprudence on

this issue. The Catholic intellectual tradition has long

recognized that texts and institutions are properly

understood in light of the traditions that give them

meaning. For that reason, the Conference has

frequently urged courts to consider the historical

understandings and legal traditions that inform

constitutional guarantees.

SUMMARY OF ARGUMENT

I. The Catholic Church has played an important

role in the historical development of safeguards that

protect the moral legitimacy of criminal adjudication.

The jury-trial right is no exception. Jury trials

emerged when the Church forbade clergy from

participating in earlier methods of adjudicating

criminal disputes. And the USCCB believes that a

fair criminal process requires faithful adherence to

the procedural protections that a legal system has

established for safeguarding the dignity of the

accused.

II. The Founders believed that, too. At the

Founding, the word “jury” referred, in the context of

criminal trials, to an adjudicatory body of twelve

people. The word’s original public meaning is not

complicated by a vague record or conflicting evidence.

Every source that this Court traditionally consults

supports that conclusion.

A. As a textual matter, a host of Founding-era

dictionaries included the requirement of a twelveperson body in the very definition of a criminal “jury.”

3

This understanding was likewise reflected

publications intended for common consumption.

in

B. These textual sources reflect centuries of

common law that cemented the twelve-person body as

the sine qua non of the criminal jury trial. By the

Founding, a host of common-law luminaries—from

Edward Coke to William Blackstone—instructed that

juries in criminal trials required twelve members.

And in the rare cases where jury size became an issue,

verdicts would not stand if the jury had fewer than

twelve members.

C. That understanding of the jury persisted

through and after the Founding. A host of evidence,

ranging from declarations of the First Continental

Congress to preratification decisions from state

courts, demonstrates that criminal juries were

required to have twelve members.

Ratification

debates reflected a shared understanding of the same

rule, with numerous members using variations of

“twelve men” as a synonym for a jury. And following

Ratification, an impressive body of judicial decisions

and scholarly analyses took the same approach

through Reconstruction.

III. Given this history, this Court’s prior holding in

Williams v. Florida, 399 U.S. 78 (1970), that the Sixth

Amendment does not require twelve-person juries in

criminal trials is demonstrably erroneous as a matter

of original public meaning.

This Court should

overrule that decision and return to its previously

long-held understanding that the Constitution

entitles criminal defendants to a jury of twelve of their

peers.

4

ARGUMENT

I.

THE CATHOLIC CHURCH PLAYED AN IMPORTANT

ROLE IN THE DEVELOPMENT OF JURIES AND

OTHER STRUCTURAL SAFEGUARDS IN CRIMINAL

TRIALS.

It would be an understatement to say that the

Catholic Church’s interest in the fairness of criminal

adjudication is longstanding. For two millennia, the

Church has grappled with the proper processes for

administering justice. In so doing, it helped cultivate

a culture and legal system in which unjust convictions

are morally intolerable.

“As a legal system, canon law predates the United

States’ founding by over fifteen hundred years and

remains in force today.” Paul M. Matenaer, Public

Access to Criminal Trials in U.S. Law and Canon

Law, 2021 Wis. L. Rev. 891, 896 (2021). It “was part

of the essential fabric of medieval England.” Brian E.

Ferme, Canon Law Culture of Medieval England, 82

Periodica 27, 29 (1993).

Then, as now, canon law “preserved for mankind”

“many … fundamental and human maxims” regarding

trial protections. Coffin v. United States, 156 U.S.

432, 455 (1895). Precursors to an array of modern

criminal procedural protections can be found in early

canon law. These include such fundamental rights as

the right to written notice of charges, the placement

of the burden of proof on the accuser, and rules for

venue.

See Gratian, Concordia Discordantium

Canonum (Decretum) (c. 1140) C.2.q.1.c.3-7,

C.3.q.1.c.1-6, C.3.q.2.c.1-4, C.3.q.6.c.1-8, C.3.q.8.c.1-7,

C.4.q.4.c.1-3, C.5.q.2.c.1-4, C.7.q.1.c.1-2 (E. Friedberg

5

ed., 2d ed. 1879). 2 Likewise, the Catholic bishops of

England were “central[]” in the framing of the Magna

Carta.

Robin Griffith-Jones, Magna Carta and

Religion, in Magna Carta: Muse and Mentor 47, 48-54

(Randy J. Holland ed. 2014). 3

More broadly, the Church helped shape the legal

culture from which the common-law jury emerged.

Indeed, the “most important event in the history of the

criminal jury was the abolition of the ordeal by edict

of the Roman church in 1215.” Roger D. Groot, The

Early Thirteenth-Century Criminal Jury, in Twelve

Good Men and True: The Criminal Trial Jury in

England, 1200-1800, at 3, 3 (J.S. Cockburn & Thomas

A. Green eds. 1988). Trials by “ordeal,” the primary

predecessor to juries, sought truth through (often

painful) physical tests that ostensibly revealed God’s

judgment. See Albert E. Wilson Eastman, The History

of Trial by Jury, 3 Nat’l Bar J. 87, 88-90 (1945).

Disputing the legitimacy of that method, Pope

2 Because of its wide distribution, Decretum became an “allimportant” influence on the common law. I Frederick Pollock &

Frederic W. Maitland, The History of English Law Before the

Time of Edward I 24 (2d ed. 1903).

3 Reflecting this legacy, common-law authorities later imbued

some of these protections with religious significance, including

the requirement that criminal juries have twelve members. See

1 Edward Coke, The First Part of the Institutes of the Laws of

England § 234, at 155 (1628) (“And that number of twelve is

much respected in holy writ, as 12 apostles, 12 stones, 12 tribes,

etc.”); 1 Giles Duncomb, Trials per Pais 92–93 (8th ed. 1766) (“If

the twelve Apostles on their twelve Thrones, must try us in our

eternal State, good Reason hath the Law to appoint the Number

of Twelve to Try our Temporal.”); see also Sam Bray, When

Catholicism Was Part of the Common Law, in Faith in Law, Law

in Faith 238 & n.18 (Rafael Domingo et al., eds. 2024) (noting

that these scriptural references then held “apparent force for

judges and lawyers”).

6

Innocent III prohibited clergy from participating in it.

See John W. Baldwin, The Intellectual Preparation for

the Canon of 1215 Against Ordeals, 36 Speculum 613,

616, 630-31, 634 (1961). Because courts saw clergy

participation as “essential,” they soon eliminated

trials by ordeal. Id. at 613-14, 630-31; see II Frederick

Pollock & Frederic W. Maitland, The History of

English Law Before the Time of Edward I 599, 619 (2d

ed. 1905). Juries soon became the “only possible mode

of proof.” Id.; see Groot, supra, at 10-34.

In its own proceedings today, the Church recognizes

that a “fair trial is a right of the faithful.” Pope John

Paul II, Address to the Tribunal of the Roman Rota

(Jan. 18, 1990), https://perma.cc/4JMP-E7B2. And it

maintains a reticulated system for administering

justice. See, e.g., Code of Canon Law canons 14001752 (Eng. trans. 1998). These adjudications “must

be entirely marked by a genuine desire to contribute

to shedding light on the just sentence to be reached”

and “constant striving of all towards the truth.” Pope

Leo XIV, Address of the Holy Father to the Prelates of

the

Roman

Rota

(Jan.

26,

2026),

https://perma.cc/47JU-6G8R.

After all, to the Church, “justice and truth represent

the

concrete

requisites

for

reconciliation.”

Compendium, supra ¶ 518.

And “[a]mong the

safeguards demanded by the law there is none,

perhaps, more important or more difficult to secure

than deciding culpability.”

Pope Pius XII, An

International Code for the Punishment of War Crimes,

28 St. John’s L. Rev. 1, 10 (1953).

While the Catholic Church provides other

procedural protections to criminal defendants, the

7

central safeguard for the accused in the United States

is an “insistence upon community participation in the

determination of guilt or innocence” through a jury.

Duncan v. Louisiana, 391 U.S. 145, 156 (1968). 4 The

jury right “raises the people itself … to the bench of

judicial authority.”

1 Alexis de Tocqueville,

Democracy in America 334-37 (Henry Reeve trans.,

Schocken 1st ed. 1961) (1835). Its power comes from

the fact that “[j]urors are ordinary people,” protecting

defendants “from being judged by a special class of

trained professionals.” Pena-Rodriguez v. Colorado,

580 U.S. 206, 236 (2017) (Alito, J., dissenting). That

includes religious jurors, who rightly bring their

experiences and faith into jury deliberations. See, e.g.,

United States v. Brown, 996 F.3d 1171, 1190-91 (11th

Cir. 2021) (en banc) (Pryor, J.) (reversing conviction

following improper exclusion of religious juror).

Amicus embraces this form of jury participation.

Indeed, “the common good require[s] citizens to fulfill

their roles in the life of the political community.”

Catechism, supra ¶ 2239. That is why the USCCB has

long encouraged the faithful to serve on juries. See

From Newcomers to Citizens All Come Bearing Gifts,

USCCB (1999), https://perma.cc/QYM2-QA6K.

It

believes that “whether [society] will exercise [its]

responsibility to hold the offender accountable

without violating his or her basic rights” is the core

“test” of

criminal

adjudication.

USCCB,

4 The Church does not maintain jury-based tribunals and does

not contend that all legal systems must employ juries. Different

legal traditions have developed different institutional means of

protecting the rights of the accused. The question here is not

what procedures every legal system should adopt, but what

institution the Constitution incorporated.

8

Responsibility, Rehabilitation, and Restoration: A

Catholic Perspective on Crime and Criminal Justice

23 (2000). And given the ancient tradition underlying

the requirement, it believes that twelve-member

juries are crucial for protecting those basic rights

within the American constitutional tradition

inherited from the common law.

II. AT THE TIME THE SIXTH AMENDMENT WAS

RATIFIED, THE TERM “JURY” UNAMBIGUOUSLY

REFERRED TO A GROUP OF TWELVE.

Because “[r]atification is a democratic act that

renders constitutional text part of our fundamental

law,” interpreting the Sixth Amendment demands an

inquiry into “the meaning of constitutional text …

fixed at the time of its ratification.” United States v.

Rahimi, 602 U.S. 680, 737 (2024) (Barrett, J.,

concurring); see, e.g., CFPB v. Cmty. Fin. Servs. Ass’n

of Am., 601 U.S. 416, 426 (2024); Gamble v. United

States, 587 U.S. 678, 683-84 (2019). The “objective of

this inquiry is to discern what ‘ordinary citizens’ at

the time of ratification would have understood” the

provision at issue to mean. McDonald v. City of Chi.,

561 U.S. 742, 813 (2010) (Thomas, J., concurring in

judgment) (quoting Dist. of Columbia v. Heller, 554

U.S. 570, 577 (2008)). To do so, this Court looks to

both the text of the provision and the historical

context surrounding it. See, e.g., id. at 813-38;

Rahimi, 602 U.S. at 715-28 (Kavanaugh, J.,

concurring). That is particularly true where the term

in question refers to an established legal institution at

the Founding. In such circumstances, constitutional

interpretation requires attention to the historical

understanding of the institution incorporated by the

text. See, e.g., Smith v. United States, 599 U.S. 236,

9

246-49 (2023); Kilbourn v. Thompson, 103 U.S. 168,

200-03 (1880).

Every source this Court traditionally consults in

assessing original public meaning confirms that a

“trial by an impartial jury” in “criminal prosecutions,”

U.S. Const. amend. VI, unambiguously refers to a trial

before a body of twelve jurors. In the context of

criminal trials, the word “jury” was synonymous with

bodies of twelve at the Founding. That meaning was

the product of centuries of materially unbroken

history in which a twelve-member body became the

defining feature of a criminal jury. As the early

history of the American Colonies, the public debates

over ratification, and the tradition of jury practice in

the following years all underscore, the Sixth

Amendment

inherited

this

longstanding

understanding.

1. Start with the text itself. A raft of Foundingera dictionaries—both general and legal—made clear

that the word “jury” meant a body of twelve people in

the context of petit juries and twenty-four people in

the context of grand juries. Samuel Johnson, for

example, defined “jury” as “a company of men, as

twenty-four, or twelve, sworn to deliver a truth upon

such evidence as shall be delivered them touching the

matter in question.” 1 Jury, A Dictionary of the

English Language (6th ed. 1785). Numerous other

general dictionaries likewise found jury size

important enough to include in the term’s definition.

See, e.g., Jury, N. Bailey, An Universal Etymological

English Dictionary (21st ed. 1770) (“a Company of

twenty-four or twelve Men, sworn to inquire of the

Matter of Fact, and declare the Truth upon such

Evidence as shall be given to them”); Jury, Thomas

10

Dyche & William Pardon, A New General English

Dictionary (14th ed. 1771) (“signifies those 24 or 12

men who are sworn to inquire into the truth of the

matter of fact, according to the evidence given”); Jury,

Thomas Sheridan, A General Dictionary of the English

Language (1780) (“a company of men, as twenty-four

or twelve, sworn to deliver a truth upon such evidence

as shall be delivered them”); Jury, William Kenrick, A

New Dictionary of the English Language (1773)

(“company of men, as twenty-four or twelve; sworn to

deliver a truth upon such evidence as shall be

delivered them”).

Legal

dictionaries

reflected

the

same

understanding. Giles Jacob’s dictionary, for example,

explained that the word jury “[s]ignifies a certain

Number of Men sworn to inquire of and try the Matter

of Fact” before clarifying that “the petit jury

consisteth of twelve men.”

Jury, A New Law

Dictionary (10th ed. 1782). And Richard and John

Burn’s dictionary made clear that “upon a trial by a

petit jury, it can be no more, nor less, than 12.” 2

Jurors, A New Law Dictionary (1792). Others are

similar. Jury, Timothy Cunningham, 3 A New and

Complete Law Dictionary (3d ed. 1783) (“signifies

either twenty-four or twelve men, sworn to enquire of

the matter of fact and declare the truth upon such

evidence as shall be delivered to them”); Jury, 3

William Marriot, A New Law Dictionary (1798)

(“verdict of twelve honest and impartial men of his

neighbourhood”); see also Juror, id. (“One of those

twenty-four or twelve men, which are sworn to declare

a truth upon such evidence as shall be given them

touching the matter in question.”). Taken together,

the twelve-member requirement was so associated

11

with juries that it was reflected in the term’s very

definition in many of the founding era’s “most useful

and authoritative [dictionaries] for the English

language.” Antonin Scalia & Bryan A. Garner,

Reading Law 419-20 (2012) (identifying Johnson,

Bailey, Dyche & Pardon, Cunningham, Jacob, Burn,

and Marriot as seven of eight recommended

dictionaries for the Founding).

Indeed, criminal juries were so associated with

groups of twelve that “twelve” was frequently used as

a synonym for a jury in popular culture. Shakespeare

and other playwrights, for example, trusted their

audiences to understand that “the sworn twelve” and

similar phrases referred to a “jury.”

William

Shakespeare, Measure for Measure, 40, act 2, sc. 1, ll.

18-21 (1623) (“The jury passing on the prisoner’s life /

May in the sworn twelve have a thief or two / Guiltier

than him they try.”); see, e.g., Richard Brome, A Mad

Couple Well Match’d 16, act 1, sc. 1, ll. 535-37 (1653)

(“Could be pick’d out a twelve good men and true, To

finde you guilty, I would then condemne you, But such

a Jury must be pannell’d first.”); Thomas Randolph,

The Muses Looking-Glasse 79, act 4, sc. 4 (1638) (“I

had rather zee him remitted to the jayle, and haue his

twelve God-vathers, good men and true contemne him

to the Gallowes.”); see also, e.g., William Shakespeare,

The Merchant of Venice act 4, sc. 1, ll. 413-16 (1600)

(referring to “two godfathers” and “ten more” as a jury

to “bring thee to the gallows”).

The same equivalence can be found in books,

poems, devotionals, and trial pamphlets that

remained popular through the eighteenth century, all

of which used then-famous phrases like “Twelve good

men and true” as synonyms for a jury. Clement

12

Walker, The Triall of Lieut. Collonell John Lilburne

55 (1649); see, e.g., The Honest Jury; or, Caleb

Triumphant: A New Ballad 1-6 (1729) (repeatedly

using

“jury”

and

“twelve

honest

men”

interchangeably); Henry Fielding, The History of the

Life of the Late Mr. Jonathan Wild the Great, in 3

Miscellanies 1, 10 (2d ed. 1743) (describing a jury

conviction as “a Combination between twelve Men …

who after some Consultation unanimously agreed on

the said Murder”); Richard Baxter, The Saints’

Everlasting Rest 644 (1650) (“these twelve

Considerations shall be as a Jury to convict thee,

which I propounded, hoping they might be effectual to

persuade thee”); John Dryden, Epistle to the Whigs

(1682), in 1 The Poetical Works of John Dryden 161,

163 (George Gilfillan ed. 1855) (“you see the nation is

not so easy to believe as your own jury … twelve men

in Newgate who would acquit a malefactor”).

2. Common-law history points the same way. By

enshrining the right to a trial by jury, this Court has

explained, the Sixth Amendment incorporated “a vital

right protected by the common law.” Ramos v.

Louisiana, 590 U.S. 83, 90-91 (2020). And the twelveperson requirement was the defining feature of the

common-law right.

For centuries prior to the Founding, the “nucleus”

of common-law criminal adjudication was “the trial by

twelve men.” II Pollock & Maitland, supra, at 620. By

at least the fourteenth century, “it had already

become an ‘ancient prerogative’ to have twelve laymen

stand between [an Englishman] and the vengeance of

the king in a criminal prosecution.” Felix Frankfurter

& Thomas G. Corcoran, Petty Federal Offenses and the

Constitutional Guarantee of Trial by Jury, 39 Harv. L.

13

Rev. 917, 923 (1926); accord, e.g., James B. Thayer,

The Jury and Its Development, 5 Harv. L. Rev. 295,

296-97 (1892) (recognizing that the “requirement of

twelve in the petty jury … seemed … to have become

the settled rule” in the fourteenth century).

That right remained materially unchanged

through the Founding. The “eminent common-law

authorities (Blackstone, Coke, Hale, and the like),”

Kahler v. Kansas, 589 U.S. 271, 279 (2020), thus made

clear that the criminal jury right included a numerical

mandate.

To Coke, twelve was a conscious

requirement: the law “delighteth herselfe in the

number of 12; for there must … be 12 jurors.” 1 Coke,

supra § 234, at 155. And, he added, the “very ancient”

right of “trial of the fact per duodecim liberos et legales

homines” [by twelve free and lawful men] “excells

others.” Id. Blackstone agreed, explaining that “the

truth of every accusation” against a criminal

defendant must “be confirmed by the unanimous

suffrage of twelve of his equals and neighbours,

indifferently chosen, and superior to all suspicion.” 4

William Blackstone, Commentaries *343; accord 3 id.

at *379 (“[I]t is the most transcendent privilege which

any subject can enjoy, or wish for, that he cannot be

affected … but by the unanimous consent of twelve of

his neighbours and equals.”). Matthew Hale was

more emphatic, stressing that “twelve of them

[jurors], neither more nor less, are sworn” following a

plea of not guilty. 2 Matthew Hale, History of the

Pleas of the Crown 293 (1736).

It naturally followed that verdicts from fewer than

twelve were not valid. Hale explained that “[i]f after

the jury [is] sworn … one of them … wilfully goes out

of town, whereby only eleven remain, these eleven

14

cannot give any verdict without the twelfth.” Id. at

295; see also id. at 296 (“a verdict … taken by eleven

… was void”). In the rare cases in which the issue

arose, decisions at common law adhered to that rule.

See, e.g., Bushel’s Case (1670) 124 Eng. Rep. 1006,

1014; Vaugh. 135, 151 (discussing earlier decision

holding that “[j]udges err’d in taking the verdict of 11”

after imprisoning the twelfth juror for disagreeing); J.

Thayer, Evidence at the Common Law 88-89 n.4

(1898) (“As the verdict was by eleven and judgment

cannot be rendered, sue out a new inquest and let the

man imprisoned be discharged.” (quoting Anonymous

Case (1367) YB 41 Edw. III fol. 31, pl. 36; 41 Lib.

Assisarum 11 (Moubrey, J.)); see also London v. Wood

(1706) 88 Eng. Rep. 1592, 1601; 12 Mod. 669, 685

(Holt, C.J.) (noting that a trial record certifying that

“there were but eleven jurors” would be a “fatal

error”); Rex v. Pritchard (1733) 87 Eng. Rep. 1210,

1211; 7 Mod. 232, 234 (Page, J.) (explaining that

empaneling a juror not properly summoned would be

error “because one being sworn who ought not, the

trial is by eleven jurors only”).

Similarly, trial courts declined to proceed with

prosecutions in the absence of twelve valid jurors.

See, e.g., Rex v. Lowfield (1731) 93 Eng. Rep. 952, 953;

2 Str. 937, 937 (continuing case because only eleven

jurors appeared and the parties would not call to add

more jurors); Wharton’s Case (1601) 80 Eng. Rep. 17,

17-18; Yel. 24, 24 (“eleven of the jury appear’d and

were sworn; but one was challeng’d by the prisoners,

and so for that time the trial was stay’d”).

3. The twelve-member requirement crossed the

Atlantic. Indeed, the General Fundamentals of

Plymouth, the earliest codified legal system by

15

English colonists in North America, guaranteed “that

all Trials, whether Capital, Criminal, or between man

and man, be Tried by a Jury of twelve good and lawful

men.” General Fundamentals § 5 (1636 & rev. 1671);

see also I The Records of the Colony of Plymouth in

New England: Laws 1623 to 1682, at 2 (David Pulsifer

ed. 1861) (reporting a 1623 standing order that “all

Criminall facts … should [be tried] by the verdict of

twelve Honest men to be Impanelled by Authority in

forme of a Jury upon their oaths”). The same principle

was soon reflected in other foundational documents in

the colonies.

See, e.g., Massachusetts Body of

Liberties ¶ 57 (1641), in Sources of Our Liberties 154

(Richard L. Perry & John C. Cooper eds. 1959)

(guaranteeing “a Jury of twelve free men” when

detailing rights in murder trials).

Closer to Independence, the First Continental

Congress declared in one of its letters to Quebec that

the “great right … of trial by jury … provides, that

neither life, liberty nor property, can be taken from

the possessor, until twelve of his unexceptionable

countrymen and peers of his vicinage, … shall pass

their sentence upon oath against him.” 1 Journals of

the Continental Congress, 1774-1789, at 104, 107

(Worthington C. Ford ed., 1904) (1774). And in a

widely circulated publication, Thomas Jefferson

discussed juries at length, opining that “the common

sense of twelve honest men gives still a better chance

of just decision, than the hazard of cross and pile.”

Thomas Jefferson, Notes on the State of Virginia 134

(1788); accord id. at 136 (explaining that defendants

are “tried by a jury of 12 men of the county where the

offense was committed”).

16

At least three preratification courts also

reaffirmed that petit juries required twelve people.

The first, Holmes v. Walton (N.J. 1780), concerned a

New Jersey statute that provided for trial of certain

smugglers before a magistrate and jury of six people.

See Roscoe Pound, The Development of Constitutional

Guarantees of Liberty 97 (1957).

A defendant

challenged the statute as violating the guarantee in

New Jersey’s constitution to the “Right[] … of Trial by

Jury.” N.J. Const. of 1776 art. XXII. In the earliest

recorded example of judicial review in the United

States, the New Jersey Supreme Court declined to

follow the statute because “a jury of six men … was

not a constitutional jury,” leading the New Jersey

legislature to repeal that provision of the act. State v.

Parkhurst, 9 N.J.L. 427, 444 (1802) (recounting the

1780 decision); see Pound, supra, at 97-98.

The second, Hague v. Stratton, concerned a juror

who admitted after voting to convict that he had

misunderstood the record. 8 Va. 84, 88 (1786). The

Virginia Supreme Court reversed the conviction, with

a majority reasoning that the error meant that the

defendant was not “found guilty by the unanimous

opinion of twelve of his peers.” Id. at 87 (Henry, J.);

see id. at 88 (Carey, P.J.) (“the law has required the

unanimous opinion of the whole twelve, to convict the

party”).

The final decision, Respublica v. Shaffer, 1 Dall.

236, 236 (Pa. O. & T. 1788), offered its view on what

was “well known” about the jury right while debates

over ratification were actively ongoing. In that court’s

view, it was “a matter well known, and well

understood, that by the laws of our country, every

17

question which affects a man’s life, reputation, or

property, must be tried by twelve of his peers.” Id.

Records from the ratification debates are similarly

uniform. Some participants spoke directly to the

issue. Edmund Randolph, for example, made clear

that under Article III’s requirement for “trial by jury,”

“[t]here is no suspicion that less than twelve jurors

will be thought sufficient.”

3 Debates on the

Constitution 467 (J. Elliot ed. 1836) (“Elliot’s

Debates”).

And responding to Anti-Federalist

objections that the Constitution did not specifically

preserve the right to challenge jurors, both James

Madison and Edmund Pendleton stressed that

incorporation of the jury right included its “incidents.”

Id. at 530 (Madison) (“The right of challenging is

incident to the trial by jury, and therefore, as one is

secured, so is the other.”); id. at 546 (Pendleton)

(“When the Constitution says that trial shall be by

jury, does it not say that every incident will go along

with it?”).

More broadly, the ratification debates were laced

with references to “twelve” people as a synonym for

the jury right. They repeatedly appeared during

formal ratification proceedings. See, e.g., 4 Elliot’s

Debates 154 (Spencer) (noting that a “trial by jury” is

“decided, in a great measure, by the consent of twelve

honest, disinterested men”); 3 Elliot’s Debates 544

(Henry) (equating “trial by jury” with the “unanimous

verdict of twelve impartial men”); 2 Elliot’s Debates

540 (McKean) (“Juries are not infallible because they

are twelve in number.”).

These references recurred over and over again in

public dueling between Federalists and Anti-

18

Federalists. See, e.g., Centinel No. 2 (Oct. 24, 1787),

in 2 The Complete Anti-Federalist 148 (H. Storing ed.

1981) (“Storing”) (describing the jury right as “12 men,

whose verdict should be unanimous, to be taken from

the vicinage”); Timoleon (Nov. 1, 1787), in 38 The

Documentary History of the Ratification of the

Constitution and the Bill of Rights 85 (John P.

Kaminski et al. eds. 2022) (“Kaminski”) (recognizing

that the jury right protected against the

“encroachments of the more powerful and wealthy

citizens” because “the fact of his oppression must be

examined and decided by twelve indifferent men”); A

Countryman (Dec. 6, 1787), in 6 Storing 73 (praising

“the trial by jury” as “a verdict of twelve of my honest

neighbors”); Fabius No. 4 (Apr. 19, 1788), in 17

Kaminski 182-84 (discussing historical regulations on

juries as regulating “twelve men” and “twelve jurors”);

Letter from William Pierce to St. George Tucker,

Gazette of the State of Ga. (Mar. 20, 1788), reprinted

in 38 Kaminski 379-81 (concluding that the

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

criminal cases” where facts must “be confirmed by the

unanimous suffrage of twelve good men”); Aristocrotis

(Apr. 27, 1788), in 3 Storing 204 (satirically criticizing

the “trial by jury” as involving “twelve ignorant

plebeians”); A Farmer No. 3 (June 6, 1788), in 4

Storing 213-14 (reading Blackstone’s discussion of

juries, including the requirement of “unanimous

consent of twelve” members).

4. Post-ratification history confirms what all

other evidence already supports. See, e.g., Smith, 599

U.S. at 250-52 & n.16.

At the Founding and

thereafter, the jury right had been “secured in every

state constitution in the union.” Parsons v. Bedford,

19

28 U.S. 433, 446 (1830) (Story, J.). And a host of

decisions in the courts of those States spoke clearly:

“The term jury [was] well understood to be twelve

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

And so, “[t]o constitute a jury, every lawyer kn[ew]

that twelve lawful men are necessary, and that

without this number no jury can exist.” State v.

Burket, 9 S.C.L. 155, 155 (1818) (holding that eight

sworn people “were not a jury, and, therefore, were

incompetent to pronounce a verdict”). 5

Leading treatises shared the same view. See, e.g.,

2 James Kent, Commentaries on American Law 13

n.b. (3d ed. 1836) (“[T]he judgment of his peers means,

trial by a jury of twelve men according to the course of

the common law ....”); 1 Joseph Chitty, A Practical

Treatise on the Criminal Law 345 (1819) (“The petit

jury, when sworn, must consist precisely of twelve ....

5 See, e.g., Whitehurst v. Davis, 3 N.C. 113, 113 (1800)

(reversing verdict by jury of thirteen); Burk v. State, 2 H&J 426,

426 (Md. 1809) (confirming that “the legal number of twelve

sworn on the jury” was present); Doebler v. Commonwealth, 3

Serg. & Rawle 237, 237 (Pa. 1817) (reversing conviction because

“from [the] record it d[id] not appear that the defendant was tried

by twelve jurors, lawfully sworn”); Crawford v. State, 10 Tenn.

60, 64-65 (1821) (“[T]his prisoner had … the constitutional and

undoubted right of having the impartial and unprejudiced

judgment of twelve jurors of his guilt.”); Ross v. Neal, 23 Ky. 407,

408 (1828) (recognizing that an objection to a jury of thirteen

“must have vitiated the verdict”); Wolfe v. Martin, 2 Miss. 30, 31

(1834) (rejecting verdict from thirteen people, reasoning that

“[t]here 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, who are tried, elected and sworn”); see also, e.g.,

Phil. Cnty. Comm’rs v. Snowden, 2 Yeates 95, 95 (Pa. 1796)

(recognizing that a statute mandating that decisions by approved

referees “have the same effect … as a verdict given by twelve

men” gave those decisions the effect of “a jury trial”); Robbins v.

Windover, 2 Tyl. 11, 13 (Vt. 1802) (“The common law requires,

that the twelve Jurors shall unite in a verdict.”).

20

If, therefore, the number returned be less than twelve,

any verdict must be ineffectual, and the judgment will

be reversed for error.”); Francis Hilliard, The

Elements of Law 338 (2d ed. 1848) (“A jury consists of

twelve men.”); see also, e.g., James Wilson, Lectures on

Law: Of Juries (1790), in 2 Collected Works of James

Wilson 985 (2007) (“To the conviction of a crime, the

undoubting and the unanimous sentiment of the

twelve jurors is of indispensable necessity.”).

This evidence only mounted further in decisions

and treatises released in the years prior to the

ratification of the Fourteenth Amendment. See, e.g.,

Opinion of Justices, 41 N.H. 550, 552 (1860) (“[N]o

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 law. … [N]o body of less than

twelve men, … would be a jury within the meaning of

the constitution.”); State v. Cox, 8 Ark. 436, 446 (1848)

(holding that “the term jury” means “a body of twelve

citizens”); Thomas M. Cooley, Treatise on the

Constitutional Limitations 319 (1868) (“A petit, petty,

or traverse jury is a body of twelve men ... 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.”); Pet. Br. 9-11, 19-23

(collecting sources). 6 As the Missouri Supreme Court

6 See also, e.g., Jackson v. State, 6 Blackf. 461, 461 (Ind. 1843)

(“This judgment must be reversed. It appears from the transcript

of the record, that the jury that tried the cause was composed of

eleven men only, and not twelve as the law requires.”); Norval v.

Rice, 2 Wis. 22, 29-30 (1853) (holding that statute restricting

juries to six people “conflict[s] with … the right to a trial by jury

of twelve men”); Work v. State, 2 Ohio St. 296, 304 (1853)

(extensively discussing the common law to “show[] beyond

controversy the number of the jury at common law … must be

21

reasoned when interpreting the “term ‘trial by jury’”

in Missouri’s bill of rights, “if there are any essential

requisites in a jury trial, among them must be the

number of jurors.” Vaughn v. Scade, 30 Mo. 600, 603

(1860). And so “where there is a constitutional

guaranty of the right to a trial by jury, twelve is the

number of which the jury must be composed.” Id. at

604.

*

*

*

The original public meaning of “jury” in the Sixth

Amendment is not ambiguous. “From the earliest

period of the common law the term jury has had a

technical and specific meaning, and has ever signified

a body of twelve citizens.” Cox, 8 Ark. at 446. Because

of this overwhelming evidence, it is unsurprising that

this Court repeatedly—and in strong terms—found it

“self evident” that a “constitutional jury means twelve

men as though that number had been specifically

named.” Patton v. United States, 281 U.S. 276, 292

(1930); accord Thompson v. Utah, 170 U.S. 343, 34950 (1898) (concluding that “the word ‘jury’ and the

words ‘trial by jury’” meant “a jury composed of not

less than twelve persons”); Capital Traction Co. v.

Hof, 174 U.S. 1, 13 (1899) (“‘Trial by jury,’ in the

primary and usual sense of the term at the common

twelve”); Bowles v. State, 37 Tenn. 360, 362-63 (1858) (reversing

judgment because “it appear[ed] that the jury who tried the

prisoner, was composed of only eleven men”); Cowles v.

Buckman, 6 Iowa 161, 163 (1858) (reversing conviction by elevenperson jury, recognizing that it was “a fatal defect in criminal

cases, without hesitation”); Cancemi v. People, 18 N.Y. 128, 13839 (1858) (reversing conviction by eleven jurors, reasoning that

it “could not lawfully be recognized by the court, … and was a

nullity”); 3 John Bouvier, Institutes of American Law 327 (1854)

(“[J]ury is understood [to mean] a body of twelve men.”).

22

law and in the American constitutions, is … a trial by

a jury of 12 men…”); 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) (concluding that the Constitution

includes “the right to be tried by a jury of twelve

persons”).

III. As a Matter of Original Public Meaning,

Williams v. Florida Is Demonstrably

Erroneous.

In light of the uniform understanding that “jury”

in the context of criminal trials meant a body of twelve

people, Respondent’s position rises and falls on the

continuing vitality—to the extent it has not already

been overruled, see Pet. Br. 24-27—of Williams v.

Florida’s holding that a six-man jury in criminal trials

complies with the Sixth Amendment. While members

of this Court take different approaches to stare decisis,

one common thread is that an important factor—

dispositive for some—is whether the precedent in

question falls within “the realm of permissible

interpretation” of the Constitution. Gamble, 587 U.S.

at 711 (Thomas, J., concurring). That is, stare decisis

turns on “whether or not a precedent qualifies as

‘demonstrably erroneous’ or ‘egregiously wrong.’”

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 425

(2024) (Gorsuch, J., concurring) (first quoting Gamble,

587 U.S. at 711 (Thomas, J., concurring), and then

quoting Ramos, 590 U.S. at 121 (Kavanaugh, J.,

concurring in part)).

23

However that standard is described, Williams fails

it. Although Williams purported to analyze historical

meaning, it did so only to justify its reliance on “other

than purely historical considerations.” 399 U.S. at 99.

The Court rejected the force of the common law

tradition because it viewed the twelve-member

requirement as a “accidental feature of the jury” due

to its unknown origins and purpose. Id. at 90. And it

dismissed historical records from ratification because

the twelve-member requirement was not openly

debated. Id. at 99. In their place, Williams considered

whether the twelve-member requirement furthered

the “purpose of the jury trial … to prevent oppression

by the Government.” Id. at 100. Reiterating its view

that twelve-member juries were a “historical accident,

unnecessary to effect” that purpose, the Court

concluded that the Sixth Amendment does not require

twelve-member juries. Id. at 102.

Williams does not cast doubt on the unambiguous

meaning of “jury” discussed above.

Instead, it

embodies at least three clear errors that obfuscated

original meaning. Once those errors are corrected,

that decision presents no “knotty issues about the

original meaning of the [Sixth] Amendment” that

could support stare decisis. Gamble, 587 U.S. at 722

(Thomas, J., concurring).

1. Williams first erred by discarding the robust

common-law history of the jury right, citing

uncertainty

regarding

the

twelve-member

requirement’s historical origin and purpose. That the

precise origins of the twelve-person requirement are

lost to history is beside the point. Even assuming,

arguendo, that juries originated for reasons

incompatible with an expansive understanding of the

24

modern right, that would mean only that the jury

right “stood for very different things at the time of the

separation of the American Colonies from what [it]

represented originally.” N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1, 35 (2022) (quoting Hurtado

v. California, 110 U.S. 516, 529 (1884)). Insofar as

history is concerned, what matters is its influence on

original public meaning at the Founding. And by that

time, the common law had been clear for centuries. To

place load-bearing weight on a gap during the Middle

Ages would require the exact sort of “indiscriminate[]

attribut[ion]” of ancient history to the Founding

generation that this Court has decried. Id.

The ostensible purposes of the twelve-member

requirement are equally immaterial. Whatever the

jury right’s “ultimate goal, … it is a procedural rather

than a substantive guarantee.”

Crawford v.

Washington, 541 U.S. 36, 61-62 (2004). It thus

“reflects a judgment, not only about the desirability

of” fair trials, “but about how [fair trials] can best be

determined.” Id. By guaranteeing a “trial ... by an

impartial jury,” the Sixth Amendment mandated a

particular form of criminal trial. See Scalia & Garner,

supra, at 56 (“[P]urpose must be derived from the text

....”). And as reflected in a mountain of Founding-era

sources, that form of trial required twelve jurors. See

supra at 9-18. It is “not the role of courts to

extrapolate from the words of the Sixth Amendment

to the values behind it, and then to enforce its

guarantees only to the extent they serve (in the courts’

views) those underlying values.” Giles v. California,

554 U.S. 353, 375 (2008) (opinion of Scalia, J.).

The Williams Court’s misplaced focus on ancient

history and simplified purpose thus reflects a more

25

fundamental error: Despite repeatedly expressing

concern that the Sixth Amendment did not

incorporate every possible nuance of criminal jury

trials, Williams never examined the relative

centrality of the twelve-member requirement at

common law. It instead stipulated to the bare fact

“that at common law the jury did indeed consist of 12.”

399 U.S. at 91. In doing so, it drained the force from

the requirement. Again, that criminal juries had

twelve members was not simply a part of the jury

right; it was the sine qua non of the right when it came

to criminal trials.

The

centrality

of

the

twelve-member

requirement—rather than its mere existence—drives

the common law’s probative value in this case. “The

common law offers a vast legal library” that “must be

used thoughtfully.” Torres v. Madrid, 592 U.S. 306,

345 (2021) (Gorsuch, J., dissenting). And so “when it

comes to interpreting the Constitution, not all history

is created equal.” Bruen, 597 U.S. at 34. For any

number of reasons, historical sources can be

“unmoored from original meaning” and thus “not

binding law” under the Constitution. Rahimi, 602

U.S. at 738 (Barrett, J., concurring). They could, for

example, be “a muddle,” Gamble, 587 U.S. at 691, or

reflect an “outlier legal rule,” Wolford v. Lopez, 146 S.

Ct. 2032, 2050 (2026), or have been obscure or

“obsolete in England at the time of the adoption of the

constitution,” Dimick v. Schiedt, 293 U.S. 474, 477-78

(1935). Conversely, rules “[w]ell entrenched in the

common law,” Rahimi, 602 U.S. at 695 (majority op.),

and part of a “long, unbroken line of common-law

precedent” are “far more likely to be part of our law,”

Bruen, 597 U.S. at 35. There is no doubt that the

26

twelve-member requirement falls into the latter

category. Whatever difficult questions may exist at

the outer contours of the jury right, the twelvemember requirement is not one of them. To reiterate,

it lies at the right’s “nucleus.” Pollock & Maitland,

supra, at 620. And that is powerfully probative of

original meaning. The Williams Court’s failure to

grapple with this history was error.

2. Williams also faltered when it rejected

Founding-era evidence due to the absence of an

“explicit decision” to require twelve-member juries in

the ratification record. 399 U.S. at 99. That set far

too high a bar for historical relevance. This Court has

long relied on evidence from the Founding short of an

“explicit decision.” Indeed, this Court drew the

opposite inference in Smith, where it concluded that

silence about the remedy for violations of the jury

right evidenced that the Constitution retained “the

remedy prescribed by common law.” 599 U.S. at 249;

see also, e.g., Heller, 554 U.S. at 598-99 (drawing

meaning from shared assumptions reflected in

debates over the Second Amendment); Powell v.

McCormack, 395 U.S. 486, 532-41 (1969) (drawing

inferences on the meaning of the Qualifications

Clause); Ex parte Wells, 59 U.S. (18 How.) 307, 311

(1855) (reasoning that the fact “no effort was made to

define or change [the] meaning” of “pardon” in Article

II “at the time of the adoption of the Constitution”

supported “giv[ing] [pardon] the same meaning as

prevailed here and in England at th[at] time” because

“American statesmen were conversant with the laws

of England, and familiar with the prerogatives

exercised by the crown”).

27

History is relevant where it “help[s] the

interpreter discern the meaning of the constitutional

text and the principles embodied in that text.”

Rahimi, 602 U.S. at 717 (Kavanaugh, J., concurring).

And that is precisely the supporting role ratification

history plays here. Some Founders expressly noted

that the jury right included the right to twelve

members, others stressed that it incorporated the

“incidents” of the right at common law, and still others

simply used “twelve men” as synonyms for “jury”;

none of these statements were corrected or

challenged. See supra at 17-18. That is plainly

probative of the Founding-era understanding of

“jury.”

Williams appeared to base its demand for more on

the Sixth Amendment’s drafting history, which it

concluded raised doubts about the scope of the jury

right. Specifically, the initial draft of the Sixth

Amendment required trial “by an impartial jury of

freeholders of the vicinage, with the requisite of

unanimity for conviction, of the right of challenge, and

other accustomed requisites.” Williams, 399 U.S. at

94 (quoting 1 Annals of Cong. 435 (1789)). But

following extensive debate over the propriety of the

“vicinage” requisite, the Founders ultimately

amended the language to guarantee a “jury of the

State and district” of the crime. See Smith, 599 U.S.

at 248-49; Williams, 399 U.S. at 95-97. The amended

version, however, no longer expressly protected the

jury right’s “other accustomed requisites.”

Id.

Reasoning that the deletion must have some

“substantive effect,” the Court found it at least

“plausible” that it meant the requisites to the jury

right were not included. Id.

28

Williams was wrong. Indeed, this Court has since

not only already rejected this exact argument, but did

so while overruling a prior, contrary decision that

adopted Williams’s reading of the record. See Ramos,

590 U.S. at 97-98. This Court was right to do so. As

two members of the Court have observed, “the

meaning of this [amendment] is wholly speculative.”

Id. at 135 (Thomas, J., concurring in judgment)

(quoting Baldwin v. New York, 399 U.S. 66, 123 n.9

(1970) (Harlan, J., dissenting)); accord id. at 97-98

(majority op.). It cannot be a reliable basis for

meaning. After all, “the private intent behind a

drafter’s rejection of one version of a text is shoddy

evidence of the public meaning of an altogether

different text.” Gamble, 587 U.S. at 684.

3. Finally, Williams erred in what it did not

consider. Even if it appropriately discounted evidence

from the common law and ratification, it

conspicuously neglected the most critical evidence of

the Sixth Amendment’s meaning: text. Preferring

now-contested “experiments” analyzing the efficacy of

smaller juries, Williams sought to intuit whether a

smaller jury could equally safeguard the ostensible

purpose of a jury trial. Had Williams attempted to

understand how the word “jury” was understood at

the Founding, it would have confronted the fact that

criminal trials had involved twelve jurors for so long

that the twelve-person requirement formed part of the

very definition of “jury.” See supra at 9-11. That

conclusion is itself all but dispositive of original public

meaning. 7

7 Williams likewise declined to address historical sources

outside the ratification debates, including preratification

29

*

*

*

Centuries of experience led the trial by jury to

become “the glory of the English law.” 3 Blackstone,

Commentaries *379. The practice was likewise “justly

dear to the American people,” Parsons, 28 U.S. at 446

(Story, J.), “which is why the jury-trial guarantee was

one of the least controversial provisions of the Bill of

Rights,” Apprendi v. New Jersey, 530 U.S. 466, 498

(2000) (Scalia, J., concurring). It now sits as a

“fundamental reservation of power in our

constitutional scheme,” ensuring “the people’s …

control in the judiciary.” Blakely v. Washington, 542

U.S. 296, 305-06 (2004).

Williams’ continuing force disservices the ancient

legacy of the jury right. It aggrandizes judicial

authority through a “functionalist assessment” of

whether particular features of the jury right are

“‘important enough’ to retain.” Ramos, 590 U.S. at

100. And it ignores that the “very enumeration of the

[jury] right” forecloses the power “to decide on a caseby-case basis whether the right is really worth

insisting upon.” Heller, 554 U.S. at 634. The meaning

of “jury” at the Founding was unambiguous. This

Court should return to that understanding.

CONCLUSION

The judgment below should be reversed.

decisions and records, as well as the uniform consensus of courts

and scholars in the interim between Ratification and

Reconstruction. See supra at 14-21.

30

Respectfully submitted,

WILLIAM J. QUINN

UNITED STATES

CONFERENCE OF

CATHOLIC BISHOPS

3211 Fourth St., NE

Washington, DC 20017

NOEL J. FRANCISCO

Counsel of Record

ANTHONY J. DICK

JOHN C. BRINKERHOFF JR.

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

njfrancisco@jonesday.com

AMANDA K. RICE

JONES DAY

150 W. Jefferson Street

Suite 2100

Detroit, MI 48226-4438

August 13, 2026

Counsel for Amicus Curiae