A blistering dissent from Justice Neil Gorsuch — handed down this week and castigating states that impanel juries of fewer than 12 people — throws into sharp relief the constitutional contours of the tribunal that convicted President Trump on all 34 counts with which he was charged. 

Natoya Cunningham v. Florida came to the Supreme Court via an appeal for review, or certiorari. Cunningham was sentenced to eight years in prison for aggravated battery and retaliation against a witness. The rub, though, is that Florida, along with Arizona, Connecticut, Indiana, Massachusetts, and Utah, allows for six- or eight-person juries rather than the more common 12-person edition.

The high court declined to consider Cunningham’s argument that a jury of half a dozen violated the Sixth Amendment’s promise that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

While decisions in respect of certiorari are shrouded in secrecy and the assent of four justices is needed to add a case to the court’s docket, dissents are possible. Justice Gorsuch admits that “Florida does what the Constitution forbids because of us.” That’s on account of what he calls a “revolutionary decision approving for the first time the use of 6 member panels in criminal cases.”

The authorization for juries of six came in Williams v. Florida, from 1970. Justice Gorsuch asserts that the decision “turned its back on the original meaning of the Constitution” and “centuries of historical practice.” Williams, he argues, “made the unthinkable a reality. In doing so, it substituted bad social science for careful attention to the Constitution’s original meaning.” Juries of 12 date from the reign of William the Conqueror, who crossed the English Channel in 1066. 

In the face of inaction from the Nine, Justice Gorsuch writes that “nothing prevents the people of Florida and other affected States from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers.” He adds that “no less than this Court, the American people serve as guardians of our enduring Constitution.”

Some of those guardians voted to convict Trump. It was President Adams who called juries “the heart and lungs of liberty” and argued that they acted as a safeguard against defendants “being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.” Mr. Trump, though, contends that his trial is “rigged” and that “Mother Teresa couldn’t beat these charges.”

One unusual aspect of Trump’s case — and its verdict — is that it has gone before a jury at all. The American Bar Association finds that 95 percent of state convictions are arrived at via plea-bargaining. The Supreme Court, in a case from 2012, Missouri v. Frye, lamented that the American justice system “is for the most part a system of pleas, not a system of trials.”

It is likely that the jury will be at the center of Trump’s inevitable appeal. One avenue of argument could be the instructions read to the jury by Judge Juan Merchan, in particular his reminder that they “need not be unanimous” as to what “unlawful means” Mr. Trump employed to allegedly further his election conspiracy.

While unanimity has been required in federal criminal cases since the 19th century, it was only mandated in state criminal proceedings in a case from 2020, Ramos v. Louisiana. Before that ruling was handed down, Louisiana and Oregon permitted convictions by a vote of 10 to two. 

This article has been updated from the bulldog