The Supreme Court Might Fix Something for Once
Monday’s batch of orders brought a rare bit of good news at the Supreme Court. The justices announced that they will hear Kian v. Florida next year, setting the stage for the court to strike down Florida’s Jim Crow–era law allowing six-member criminal juries.The Sixth Amendment requires, among many other things, that criminal trials be conducted before an “impartial jury.” In nearly every state, this jury consists of 12 members of the community where the alleged crime was committed. But in a handful of jurisdictions, states use fewer jurors to more easily secure convictions.Hamed Kian, the defendant in this case, is a chiropractor in Jupiter, Florida. State officials suspended Kian’s license in 2021 while they investigated allegations of sexual misconduct against him. Kian allegedly continued to treat patients in the years that followed, leading state prosecutors to bring five counts of practicing chiropractic medicine with a suspended license.Under Florida law, trials for capital offenses are held before a 12-person jury. Defendants who face noncapital felony charges, however, are instead prosecuted before a six-person jury. One of those smaller juries convicted Kian on all five charges. He was sentenced to one year in prison and five years of probation.On appeal, Kian sought to overturn his conviction by arguing that the Sixth Amendment required him to be tried before a 12-member jury. Forty-four states in the Union currently impose that requirement for all felony trials. Florida and five other states—Arizona, Connecticut, Florida, Massachusetts, and Utah—allow at least some trials to be held before juries with fewer than 12 members. No state allows juries with five or fewer members.In 2022, an Arizona man asked the Supreme Court to review his conviction of felony offenses by an eight-member jury on Sixth Amendment grounds. While the court declined to do so, Justices Neil Gorsuch and Brett Kavanaugh publicly indicated that they had voted to review his case. Gorsuch also wrote a solo dissent where he forcefully argued that the court should have taken up the case.Twelve, Gorsuch argued, was not some arbitrary number. By the time the Framers adopted the Sixth Amendment in 1791, their English ancestors had upheld the right to a 12-member jury for nearly four centuries. (Other accounts date the 12-member jury even further back, to around the enactment of Magna Carta in 1215.) As a result, founding-era Americans understood “the right to a trial by jury for serious criminal offenses meant a trial before 12 members of the community—nothing less.”Florida’s deviation from this legal norm came as federal troops withdrew from the South, heralding the end of Reconstruction. Kian noted that the Florida legislature first enacted a six-member jury law in February 1877, one month after President Rutherford B. Hayes ordered the military’s withdrawal. “The jury-of-six thus first saw light at the birth of the Jim Crow era as former Confederates regained power in southern states and state prosecutors made a concerted effort to prevent blacks from serving as jurors,” Kian told the justices in his petition for review.Historians have long noted that Southern Redeemers used a variety of subjective legal tests to eliminate Black civic and political participation, both at the ballot box and in the jury box. Along with this historical evidence, Kian pointed out that Black jury participation in Florida became so rare in the Jim Crow years that state newspapers treated it as remarkable and newsworthy on the rare occasions when a Black juror was actually empaneled.The Supreme Court is well aware of this general history. In 2020, the justices struck down another Jim Crow–era jury restriction in Ramos v. Louisiana. Two states, Louisiana and Oregon, allowed nonunanimous jury convictions for felony offenses. This allowed states to convict defendants even if one or two members of the jury voted to find them not guilty. (Though Oregon was not technically a Jim Crow state, it is well established by historians that the Ku Klux Klan played a key role in the restriction’s adoption in the 1930s.)Oregon’s nonunanimous jury law had been previously upheld by the Supreme Court in the 1972 case Apodaca v. Oregon. But Gorsuch, writing for the Ramos majority, rejected what he described as the “functionalist” reasoning of the Apodaca justices, where they looked to the rule’s “function” in “contemporary society.” Gorsuch instead adopted an originalist approach to require jury unanimity in all felony trials.“When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses,” he wrote in his Ramos decision. “They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed. As judges, it is not our role to reassess whether the right to a unanimous jury is ‘important enough’ to retain.”When the court declined to hear the 2022 case involving juries with fewer than 12 members, Gorsuch took the same approach. “For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community,” he wrote. “In 1970, this court abandoned that ancient promise and enshrined in its place bad social science parading as law.”That 1970 case was Williams v. Florida, where the court upheld Florida’s six-man jury law as a constitutionally permissible change to the long-standing tradition of 12-member juries. “That mistake,” Gorsuch explained, “continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.”Kian’s appeal received a favorable hearing from a Florida appeals court that reviewed his conviction. At the same time, that court concluded that it was bound by the Supreme Court’s earlier holding in Williams, even though the precedent’s reasoning had been severely undermined by the court’s 2020 ruling in Ramos. The appeals court effectively signaled to the justices that they hoped to be overturned by praising Ramos, when “the light of originalism began to [peek] out from the darkness of functionalism.”Florida, for its part, had urged the justices to maintain the status quo. The state claimed in its brief that Kian had made “no serious attempt to show that overruling Williams is warranted under traditional principles of stare decisis.” Florida also warned that overruling Williams “would imperil thousands of criminal convictions in Florida and five other states that for more than 50 years have relied on its rule.” Though the state could not provide exact numbers on how many Floridians had been convicted by six-member juries since the 1970s, it noted that “roughly 5,000 criminal convictions are currently pending on direct appeal.”Those numbers would likely pose little impediment for the Supreme Court to overturn Williams when it hears Kian’s case next term, however. When the Supreme Court handed down its ruling in Ramos six years ago, the ruling took effect for future trials and those that had not yet exhausted their appeals. In a follow-up case, however, the court declined to apply it retroactively, meaning that finalized criminal convictions remained intact.It is always a fool’s errand to predict exactly how the Supreme Court will decide a case. One subtle sign of Kian’s confidence is that he and his lawyers declined to file a reply brief to Florida’s brief that urged the court not to take up the case, as if they had already said everything they needed to say. The stage is now set for the Supreme Court to further strengthen one of the great bulwarks of American liberty—in the few states, at least, that have gotten away with diminishing it for so long.