The Founders Revered the Right to Trial by Jury. Will SCOTUS Now Follow Their Example?

The U.S. Supreme Court just added a new case to its upcoming 2026–27 docket that should interest fans of early American history.

At issue in Kian v. Florida is whether the Sixth Amendment right to trial by jury requires 12-person juries in all criminal cases. Florida law says it does not. According to that state’s statute books, “twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.” Hamed Kian, who was tried by a six-person Florida jury and sentenced to prison for practicing chiropractic medicine with a suspended license, wants the Supreme Court to overturn his conviction and restore the 12-person jury in the Sunshine State and the handful of other states that currently lack it.

To win, Kian will have to persuade a majority of the justices to overrule the Supreme Court’s 1970 precedent in Williams v. Florida, which allowed the use of six-person juries. “Williams was incorrectly decided,” Kian argues, “and is contrary to the understanding of the Sixth Amendment at the time of the Founding.”

At least one member of the Supreme Court seems more than ready to reach that same conclusion and rule in Kian’s favor. In 2022, the Supreme Court declined to hear a similar case about the constitutionality of an eight-person jury called Khorrami v Arizona. Dissenting from that denial of certiorari, Justice Neil Gorsuch argued that “a mountain of evidence suggests that, both at the time of the [Sixth] Amendment’s adoption and for most of our Nation’s history, the right to a trial by jury for serious criminal offenses meant a trial before 12 members of the community—nothing less.”

Two years later, the Court declined to take up a six-person jury case called Cunningham v. Florida (2024). And once again, Gorsuch filed a sharp dissent. “Florida does what the Constitution forbids because of us,” he declared. “In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6-member panels in criminal cases.” And “in doing so,” Gorsuch continued, “the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a ‘battery of this Court’s precedents.’”

Gorsuch’s historical argument is convincing. The Sixth Amendment’s right to trial by jury was rooted in the British common law. And that British common law right, as William Blackstone explained in 1769 in his widely read Commentaries on the Laws of England, rested on the existence of 12-person juries. “The founders of the English law,” Blackstone observed, “have, with excellent forecast, contrived, that…the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion.”

To say that the right to trial by jury was of paramount importance to America’s founding generation would be putting it mildly. Among the “repeated Injuries and Usurpations” charged against King George III in the Declaration of Independence, for example, is the fact that the crown “depriv[ed] us, in many Cases, of the Benefits of Trial by Jury.”

Likewise, when the Anti-Federalists complained in the late 1780s about the lack of a Bill of Rights in the new U.S. Constitution, they frequently lamented the lack of additional jury trial safeguards. “How does your trial by jury stand?” Patrick Henry demanded of the Virginia Ratification Convention on June 5, 1788. “In civil cases gone—not sufficiently secured in criminal—this best privilege is gone.” The Sixth Amendment was ultimately added to the Constitution to assuage such Anti-Federalist concerns.

Kian v. Florida thus presents the Supreme Court with the opportunity to both correct one of its past mistakes and vindicate a venerable constitutional right the founding generation clearly held dear.

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