“6 Angry Men” doesn’t have the same ring as the name of the famous film – but is 12 constitutionally required? Or is it merely a convention that some states choose to follow in the spirit of English common law? When the Supreme Court returns this fall, it will confront that question in Kian v. Florida, a case asking whether Florida may convict a person of a serious crime with a jury of only six.
More than half a century ago, in Williams v. Florida, the court acknowledged that since before the founding, juries had consisted of 12 people but concluded that the number was a “historical accident… wholly without significance ‘except to mystics.’” Because six jurors could adequately perform the functions of a jury, it said, the Sixth Amendment did not require a dozen.
Justice Thurgood Marshall dissented. The man who had seen firsthand the importance of a fair and impartial jury argued that the court had cast aside both the historical meaning of “jury” and an unbroken line of precedent simply because a majority considered the traditional rule unnecessary. Since then, Justice Neil Gorsuch has taken up Marshall’s mantle and repeatedly authored dissents from the court’s refusal to reconsider this issue. The pair’s dissents are united by the proposition that judges are entrusted to preserve constitutional protections even when some believe they can be harmlessly discarded. And this term, they might be vindicated.
How six became enough
The path to a six-person jury began, paradoxically, with a decision expanding defendants’ rights. In Duncan v. Louisiana in 1968, the court held that the Sixth Amendment right to a jury trial applies not just to the federal government, but also to the states through the 14th Amendment. That decision immediately raised a second-order question: Which attributes of a federal jury must the states provide?
Florida provided an early test. The state had reduced its 12-member jury requirement in all but capital cases after the end of the Civil War. It had also imposed limits on who could serve on the jury with the aim of excluding Black jurors. The result was that it was so rare for Black Floridians to serve on a jury that newspapers all the way into the 1950s found it worth writing about when a Black juror was selected.
Johnny Williams challenged his robbery conviction on the basis that the Sixth Amendment guaranteed him the same 12-person jury that had existed at common law and that federal courts had long said 12 jurors were guaranteed by the Sixth Amendment, “neither more nor less.”
A majority of the Supreme Court saw it differently, however. In their view, a “12-man panel” was not a “necessary ingredient,” but instead a “historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” Justice Byron White wrote that merely because “a given feature existed in a jury at common law in 1789” did not necessarily mean it was enshrined in the Constitution. And the purposes of a jury – bringing community judgment into the courtroom and guarding against injustice – could be accomplished by fewer than 12.
The available empirical evidence did not convince the majority otherwise. Although a larger jury theoretically increased the number of viewpoints represented, the court predicted that the practical difference would be negligible. It likewise doubted that reducing the panel from 12 to six would meaningfully change the accuracy of factfinding or reduce the likelihood of a hung jury. As the majority concluded, to “forever codify” a feature incidental to the amendment’s purpose would be to “ascribe a blind formalism to the Framers.” Following Williams, although most states retained a 12-person jury, they were not constitutionally compelled to do so.
The case also produced an illuminating exchange between Justices John Marshall Harlan II and Hugo Black about incorporation (applying the entire Bill of Rights to the states), over which they frequently sparred. Harlan had dissented in Duncan because he rejected incorporation of the Sixth Amendment. In Williams, however, he concurred because he believed that the historical case for a 12-person federal jury was overwhelming. The majority, he surmised, wanted to give the states “more elbow room” to administer their criminal systems, which he was sympathetic to. But he objected to also watering down the Sixth Amendment for federal courts in the process, which, in his view, historically required 12-person juries.
Black, the court’s leading champion of incorporation of the entire Bill of Rights, rejected the idea that the majority sought to “dilute the Sixth Amendment in order more easily to apply it to the States.” While Harlan saw danger in incorporation, Black warned of the danger in Harlan’s approach, which would allow judges to arbitrarily decide which safeguards were sufficiently “fundamental” to bind the states. Under that approach, constitutional rights would depend on subjective assessments of fairness.
Marshall, for his part, agreed with Harlan on one point and with Black on another. Like Harlan, he believed that the Sixth Amendment guaranteed a jury of 12. But like Black, he thought that constitutional rights, once incorporated, applied equally against the federal government and the states. He therefore wrote his own dissent – although one remarkably restrained given his experience litigating jury trials.
From Marshall to Gorsuch
Marshall hardly needs an introduction. The first Black United States solicitor general and the first Black justice, he argued Brown v. Board of Education and, as his clerk Elena Kagan said of him, was “the greatest lawyer of the 20th century.” Born in Baltimore in 1908, when lynchings were still a horrifying fact of American life, Marshall learned to argue at his father’s dinner table, where issues of the day were debated nightly. He had a mischievous streak that often landed him in trouble at school and led to a teacher punishing him by making him memorize the Constitution. After the University of Maryland Law School rejected him because of his race, Marshall attended Howard University School of Law, where he met his mentor, Charles Hamilton Houston, with whom he would help shape the legal strategy that would eventually dismantle segregation.
After law school Marshall spent years defending Black criminal defendants in the Jim Crow South. Traveling from town to town for the NAACP with Houston and others, he ate meals in the car because restaurants would not serve him, slept in safe houses, avoided driving after dark, and sometimes commuted miles each day rather than stay in hostile communities. They represented people who had been coerced into confessing, tried before all-white juries, and then sentenced to death in proceedings that bore little resemblance to justice. He once recalled that in some Southern courtrooms, juries would return guilty verdicts in the time it took one juror to smoke a cigar. Marshall knew firsthand that criminal procedure could mean the difference between life and death.
Yet his dissent in Williams did not invoke those experiences or dwell on racial injustice. Instead, he relied on constitutional history and case law, pointing to an “unbroken line of precedent going back over 70 years.” The majority, Marshall wrote, had not offered a convincing reason to rule otherwise. In his words, its “circumvention of history [was] compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members.”
Half a century later, the court revisited a different feature of the Sixth Amendment jury guarantee in Ramos v. Louisiana. Around the same time as Williams the court had ruled in Apodaca v. Oregon that unanimity was not constitutionally required for state felony convictions. In Ramos, it reversed course. Writing for a fractured majority, Gorsuch criticized the court’s earlier decision in Apodaca in ways that echoed Marshall’s objection to Williams. The problem was not that Apodaca had conducted its cost-benefit analysis poorly. Rather, the court had no business subjecting an ancient constitutional guarantee to functional balancing in the first place. When the people included the jury right in the Constitution, Gorsuch wrote, they were not proposing “fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.” Gorsuch also relied heavily on the history of racism when it came to states tinkering with their jury requirements.
Ramos’ reasoning would seem to make Williams difficult to defend. If the word “jury” carries the meaning it bore when the Sixth Amendment was adopted, and if that right cannot be balanced away, why does it include the common law requirement of unanimity but not the equally familiar requirement of 12 members? Nevertheless, when criminal defendants asked the court to reconsider Williams, the court repeatedly declined.
Gorsuch dissented from these denials to reconsider Williams. In Khorrami v. Arizona, which challenged Arizona’s conviction of Ramin Khorrami before a jury of eight, Gorsuch amassed founding era sources, 19th century treatises, state court decisions, and Supreme Court precedents supporting the 12-person rule. “Williams was wrong the day it was decided,” he wrote, “it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation’s courts.”
Two years later, he wrote a similar dissent from denial in Cunningham v. Florida. Florida had sent Natoya Cunningham to prison for eight years “on the say of just six people.” This time Gorsuch placed responsibility squarely on the court: “Florida does what the Constitution forbids because of us.” Williams, he argued, had replaced constitutional meaning with bad social science – research that came under scrutiny almost as soon as the decision appeared. Though the case failed to secure the four votes needed for review, Gorsuch “hope[d]” that someday this would happen.
In 2026, that day arrived.
The return of 12?
Hamed Kian was charged with five counts of practicing chiropractic medicine while his license was suspended and convicted by a six-person jury in Florida. He was sentenced to just over a year in prison and five years of probation. The Florida appellate court rejected his Sixth Amendment challenge under Williams, but this year, the Supreme Court took up his case to reconsider whether a 12-person jury is constitutionally required.
Kian contends in his petition that at the founding, the phrase “trial by jury” had an established legal meaning that included 12 members. The court recognized that meaning repeatedly before abruptly abandoning it in 1970. What’s more, the functional premise of Williams has not aged well. According to him, research since the decision indicates that larger juries tend to deliberate longer, recall evidence more accurately, include a broader range of viewpoints, and rely less on irrelevant information. Kian also suggests that jury size was reduced for racist reasons – in Gorsuch’s words, as “a systematic effort to suppress minority voices in public affairs.”
Florida responds that Williams has governed for 56 years and generated enormous reliance interests. Florida and five other states use juries smaller than 12 in at least some criminal trials. Florida says roughly 5,000 convictions of cases tried before six-member juries are currently pending on direct appeal in its courts alone. It also disputes Kian’s reading of the history and the empirical literature, arguing that the Sixth Amendment preserved the jury’s essential function – “as a device for insuring that the Government bear the heavier burden of proof” – rather than every detail of common law practice. Larger groups, the state adds, can invite freeriding or domination by forceful personalities. The evidence does not establish that six-member juries are constitutionally deficient, it says, and there are race neutral reasons for having them.
The court’s recent treatment of the right to a jury trial is mixed. Although the court chose to reinstate the unanimity requirement in Ramos, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Elena Kagan, dissented, accusing the majority of giving stare decisis “rough treatment.” Similar concerns will return in Kian, attached to decades of state practice and thousands of judgments.
Perhaps six people can deliberate carefully. And perhaps many six-person verdicts are perfectly sound. The question in Kian is whether the judgment about that number’s adequacy belongs to social scientists, legislators, or judges – or whether the people who adopted the Sixth Amendment settled it when they guaranteed a “jury.”
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