Last term in timbs against indiana this court reaffirmed the wellsettled rule that Incorporated Provisions of the bill of rights apply the same way to the states as they apply to the federal government. Taking that rule as they given, the state does not defend Justice Powell pivotal vote in the apodaca case. That we shouldnt flouted president at the time and is simply relegated to nothing more than isolated relic of an abandon doctrine. The states only defense in support of the judgment below is the sixth amendment does not require unanimity at all. That is not sick courts or in federal courts. This court should redact that argument because a court has said many times over many decades sixth amendment requires unanimous verdict to convict. In particular what the court has said is the sixth amendment right to trial by jury carries with it the essential common law and the, authorities are uniform, explicit, and absolute. Unanimity is an absolute requirement to trial by jury. The reasons the common law commentators gave that role resonate just as powerfully now as they did then. We are not prepared to take with someones liberty unless a crosssection of the community uniform agrees that criminal punishment is appropriate. I dont think the state disputes that historical account or even that unanimity is central to the proper functioning of the jury trial right. What the state says are two primary things. First, the drafting history of the sixth amendment suggests the framers meant to dispense with that historical role, and second, that that historical requirement of unanimity is no more important than the 12 person both which this court said is not part of the 6 million in williams. Let me start with the drafting history. We think for three reasons the status over red drafting history. First, as the court itself is said, we did not read into a deletion of language any meaning when theres no contemporary evidence that it was designed to change the meaning of the provision. Thats all the more true here because the contextual backdrop. The state talks about the fact many states at the time at trial by jury provisions in their own constitutions and correctly note some of those provisions explicit requires unanimity but some of them didnt in the rule was the same across all of those states so the thing the frames were taken from the context of the time would have been it doesnt matter whether you had unanimity in the provision. Requires it either way. To give them, to be fair, even if you see something unanimity, some dont, and you have a draft this is unanimity, i dont understand why you take it out and then argue later, it doesnt matter whether within or not. Why would he take it take it out . The best evidence, mr. Chief justice, it got latched onto a debate about the vicinage requirement. What James Madison did was take with all of the elaboration of the right to trial by jury. The best example to respond is the pennsylvania constitution, which at the time of the fan required unanimity explicitly and then Justin Wilson amended, rewrote the constitution in pennsylvania to take it out. Justice wilson was one of the leading expositors of the commonlaw notion of trial by jury and the sixth amendment requiring unanimity. That was a lasting one to say about the drafting history. One would think that the framers had to dispense with 400 years of uniform practice that somebody wouldve said something about it. What you have is the reverse picket Justice Wilson bite of the constitution in founding talking great length about hiking High Community is indispensable. Justice in his counters you exactly same word indispensable. Give any number of other law treatises at the time is gathered and a brace and a great in aclu brief that canvasses history all reinforcing this notion. You are asking us to overrule apodaca, so would you to think about stare decisis. Last term the majority was lectured pretty startling and a couple of the sense about the importance of stare decisis and about the impropriety of overruling establish rules. Im thinking about the dissent in Franchise Tax board and the dissent in knick versus township of scott. Very important consideration in considering stare decisis is reliance. It would be helpful to me if you could compare the reliance thats at issue here. Louisiana and oregon have thousands of cases in reliance on apodaca. The court said this was okay. Weve never suggested that it wasnt. Weve denied cert and lots of cases so can you compare the reliance you with the relighting antis tax board and in knick . Id like to make both a legl comparison and a factual comparison. Starting with a long its important to note the state is climbed rely on apodaca but they are not defending the role of apodaca which is that the 14th amendment doesnt require states to have unanimous verdicts. Theyre asking the court to adopt a new rule of sixth Amendment Law that the court has never doubted her the court last term as you note in part of those disagreements, some justice of the same its okay to come up and rehabilitate an old rule, that shouldnt virgo stare decisis value but here the state is acting for brando rule. We are not tied in deciding this case to the position thats taken by the state. We have a decision of this court, apodaca, and we could affirm it on a Different Ground from the one, the exact one this date as advance. I want you to complete what you were saying. Let me give you three reasons why even if you take that as a given, stare decisis shouldnt carry the day and then ill turn to the facts. Still sticking with the law, three things. Justice bowels vote was an isolated note where there was no majority for the court and was indeed his vote was rejected by the other eight this is so unfair, mr. Fisher but i ask you to take that out of your analysis . Just pretend for the remainder of your analysis, i think thats an important consideration which im not quite sure how to think about but if you assumed, just any old 54 decision. I would move to my second point which the 14th amendment rule if adopted by majority, is a derelict in the law. It is an abandoned relic the past jurisprudence and you want to look further than last term in thames. You can look at the mcdonalds opinion and any number of other opinions on this court that say the same stance had to fly to the state as the federal government. It would be an outlet. It would be something that says we have an exception here. Were going to treat this amendment different way. We tolerate a pretty significant degree of diversity in state criminal procedure, and this could just be one of those sorts of rules where we say there are occasional times where we think that the state gets to decide something on its own. And so yes, its anomaly. Usually we do look in stare decisis reason for anomalies but this is not the kind of anomaly that should concern us over much, because in general criminal procedure law is loaded with anomalies. Justice kagan, let me respond one thing i hope is in fighting the premise but what i would say is if you look at the courts and corporation jurisprudence that is one place the court is not accepted anomalies and where the court said stare decisis is a very lower ab when it comes to state of the fundamental rules of the road of the bill of rights. On that level it is different kind of situation in order stare decisis case. Did thames in saint excessive fines clause applies to the states, recognize apodaca as an exception . Recognized the sixth amendment was the one exception to complete incorporation . Thats right, Justice Ginsburg and my argument today is even though thats been an exception for soldiers and shouldnt go forward. It doesnt have any footing in the law. What else have you got . Let me turn to come i think youre asking me about convictions. This is another area where stare decisis actually action has ley than normal. Thats because the court all we has been set of doctrines like the teague jurisprudence and the griffith jurisprudence that are themselves designed to give states are reliance interest in the past president from this court. Unlike the ordinary case can Franchise Tax board and other doctrines, you had this whole separate set of doctrines the state can invoke to support its reliance interest in the past convictions. We dont have a decision in your favor in this case would play out in collateral review, either in federal court or in state court. I can well envision seeing you up here in a term or two arguing this is a water, the rule that youre trying to persuade us to accept that it is a watershed rule of criminal procedure. Do you think thats a frivolous argument . I dont think its frivolous. The best thing statement to say for itself is that duncan itself when the court incorporated ine right to jury trial, duncan itself was not held to be retroactive. The core point that im making too today is in deciding whether to overrule a past case, absolutely reliance interests are at stake. There are separate doctrines to protect those reliance interest, so that i dont think you should give them undue weight in this situation. I dont think the court has given those kinds of things undue weight in the past. I would direct the back to its mcdonald decision were catalogued all the times over the years in the course incorporation jurisprudence that is over will pass cases. I dont think theres any other area of law were stare decisis over the years has held less value than a corporation. What about the size of the jury, if we were to accept your argument, how or who would draw a distinction between this case and the precedents on size of a jury . Justice kavanaugh, i think williams itself tells you how you would do that. It says the question under this sixth amendment is whether the feature at issue is an indispensable feature or an essential feature of the right to jury trial as we practice it in this country. What the court conclude in williams after looking at historical sources was the remix. Probably the better reading with a 12 person role was just a historical accident. That is a holding of this court that puts it on the other side of the ledger from the uniform, commonlaw authorities when comes to unanimity and upholding would be entitled to a stare decisis effect. Mr. Fisher, williams, i think, is a problem for you. If only six minds need to agree to convict of a criminal offense, why shouldnt can be enough . The key principle is not how many. Its the degree of agreement. So my proposition today is a 102 verdict is less guaranteed to be accurate and was guaranteed to be constant with the purposes of a a jury trialy 60 for it. Your prefaced by saying its a key part of the distinction youre trying to draw . Maybe it is the very distinction. I know but i guess im not sure that self apparent. I dont know whether you play out in game figure something but he asked the defendant what you want . Do you want sex and have to agree across the board or do a 12 and had to convince is not apparent to me which i would take. Mr. Chief justice, county legal answer any practical answer . A legal answer, they unanimity required even if a six person for it more consistent and effect is the only consistent outcome with the purposes of the jury trial clause because the core purposes are effective deliberation towards an accurate decision and a crosssection of the community. Remember what happened in louisiana and in oregon is that a crosssection of the community can be left out of and counseled out of those deliberations. Thats very different than a 60 verdict when comes to why things happen in the jury room and the Public Confidence in that verdict. Also give a practical answer to your question. When louisiana was considering changing its lot edited to change the fall which arts event that it is also something that if think should be taken into account when comes to stare decisis that the museum has changed its law, during those deliberations was a prosecutor who testified and said he used to sometimes charge felonies instead of misdemeanors because its easier to get 102 verdict that was to get a 60 verdict lets say im not entirely persuaded by your arguments about the distinction between unanimity and numbers between this case and williams. How to get anything else besides these functionalist arguments about the real great importance not unanimity and the relative lack of importance about numbers . What i would say to you is the text of the sixth amendment understood through its purpose distinguishes this case from williams. Let me explain what a mean by that. The text of the sixth amendment says the defendant has right to trial by jury. They key is what does that phrase means . From history we know that that phrase meant that not just the defendant got a jury, but that the trial by jury included the way the jury reached its decision. If we have a jury who hangs or cant reach a verdict, there is a mistrial. We dont even have trial by jury. Jury. Thats inherent in the term. What the court said in williams is there are going to be some features of the common law. Imagine that the jurors all had to wear a particular color jacket to court. Theres going to be certain incidental features of the right to jury trial that dont necessarily have to be read along with the sixth amendment. There would be things that happen to occur at, ball that wouldnt message of the book forward today. Maybe which are driving it to some degree is i think there is an argument and a powerful argument made in williams that the 12 person required it shouldnt be thought of that way. There were some people who thought that 12 person required was a important feature. There were others who didnt. Lord coke and many other commentators thought 12 is just a pencil number. It does mean anything. Already met in this case i think i whats the core meaning of the phrase trial by jury. Do you think we would also have to overrule ludwig versus massachusetts if we overruled apodaca . That was not the case in which Justice Powell unusual approach to incorporation ended up being the deciding vote in the case. It was about a twotiered jury system. Thats right. All my position here today would tell you if you were to revisit that is that Justice Powells vote in that case just like in this case doesnt set up a rule of law the court should hereto. You still have separate sixth amendment question which the court divided on and you would consider that case on its own terms. To be perfectly candid with you, i dont even know what the common law would say about the twotiered jury system. That was a something Court Considered in that case. You started off and then i told you to stop, but i thought i would give you an opportunity to do it again. What are we to make of this 414 reasoning of apodaca and what do you think the rule should be about stare decisis Going Forward . Do you need a majority . Do you just need a controlling role . Whats the right way to think about that . I can say what i think and what the court has done. There are times where a single vote could be accorded stare decisis effect, particularly if its comfortably a narrow ground within the marks rule. Then you have other cases more like this where marx doesnt fit onto that system. The most recent time the court dealt with the situation like that was issues case where you had a 414 vote in the prior case and the court said will consider this issue fresh. The court did the same thing in seminole tribe. In similar tribe is a good example of the case that your deep divisions within the court as with the substantive meaning of the 11th of meant was with Justice Souter said i do not begrudge the majority for considering this issue fresh because those the majority of the court that at present spoken to it. What about a party does to make decisions about how its going to order its affairs in the wake of a decision that it wins what it does in a 414 decision . What is a party supposed to do . We won this case but we really cant rely on it because it has no stare decisis effect, and then what happens as the years go by and nothing happens, the court doesnt come back to that question . That at least is in the ordinary case, the party would have every right to rely on this courts decision, subject to the ordinary principles of stare decisis that were deciding. One thing that makes this case unusual is you would think if the party did rely on that prior case it would come up and defend instead ask the court for a different rule. That tells you something about how discredited the fifth vote in this case is, which i think makes it almost a universe of one. Ive looked and havent that any of the case where somebody has come up to this court and said, im not even going to make an argument based on the provision of the constitution in which the previous decision rests. Can i come back to the math question that was alluded to earlier . I must confess, im not myself capable of doing this math but somebody could. If you hypothesize a a jury pol with a certain percentage of jurors who were inclined to acquit, and you ask is there a greater likelihood of acquittal with a 60 verdict than a 102 verdict or if the state defense of a jury thats bigger than 12, 15one, a 15 person jury, 19 19one, when we get to the point with the chance of acquittal is in favor of the nonunanimous rule, would that be unconstitutional . My rule is that anytime the state deviates from unanimity it is unconstitutional, so even if the state were to go beyond the number of 12. I think the reason why is because its a different phenomenon in somebody disagrees in the jury room. I dont mean to be presumptuous that ive heard some justices of this court remark is the difference between a 90 opinion and 81 opinion. When someone puts reasonable good faith use of the table and requires an answer from others that sharpens ones thinking that leads to better results sometimes and in a jury room that would be you want to argue it would had to be as big as a granger a represent the criminal defendant you would rather say we want 600 is better for us than 21 to one. Perhaps it would be a number with argument would be difficult and i think what i would tell you is the history and tradition of this country makes it highly unlikely well ever see a system like that. What we have uniformly almost dropped the state is a ceiling of 12. You talked about a math problem and to think maybe its also helpful to remind the court of the courts decision last term in flowers with the court talked about the math of peremptory challenges. You have a math problem here which is yet one or two members of minority on a jury, racial majority, a political minority, a religious minority, are we prepared to say those one or two votes can be utterly canceled out . To the racial origins of this will have an impact on how we think about stare decisis in this case . I think they de