Powells pivotal vote in the case. Indeed, that reasoning flouted precedent at the time and has since been relegated to nothing more than an isolated relic of an abandoned doctrine. The states only defense in support of the judgment below is that the sixth amendment does not require unanimity at all, that is hnot in state courts or federal court. This court should reject that argument. As the court has said many times over many decades, the sixth amendment requires a unanimous verdict to convict. In particular, what the court has said is the sixth amendment right to try by jury carries with it the essentials of the common law. The common law authorities are uniform, explicit, and absolute. Unanimity is an absolute requirement to trial by jury. The reasons that the common law commentators gave for that rule resonate just as powerfully now as they did then. In a nutshell, were not prepared to take away somebody ice liberty unless a Cross Section of the community uniformly agrees criminal punishment is appropriate. Now, i dont think the state disputes that historic account that i just gave you or even that unanimity is central is the proper functioning of the jury trial right. Instead, what the state says are two primary things. First, that the drafting history of the sixth amendment suggests the framers meant to dispense with that historical rule and second that that historical requirement of unanimity is no more important that the 12person rule which this court said is not part of the sixth amendment in williams. Let me turn to twohose two arguments. Let me start with the drafting history. We think for three reasons the state has overread the drafting. The court, itself, said in cases dealing with provisions like the Second Amendment and the double jeopardy clause, we do 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. And thats all the more true here because the contextual backdrop. The state talks about the fact that many states at the time had trial by jury provisions in their own constitutions. And correctly notes that some of those provisions explicitly required unanimity but some of them didnt and the rule was the same across all of those states so the thing that the framers would have taken from the context at the time would have been that it doesnt matter whether you have unanimity in the provision, it requires it either way. Well, but still, i mean, to give them to be fair, even if you see some have unanimity, some dont, you got a draft that says unanimity, ion understand why you would take it out and just then be able to argue later, wilell, it doesnt matter whether it was in or not, its in there in the draft, why would they take it out . The best historical evidence, it got latched onto a debate, James Madison took away all the elaboration of the right to trial by jury, so i think actually the best example, also, to respond, is the pennsylvania constitution which at the time of the founding required unanimity explicitly then Justice Wilson actually amended the rewrote the constitution in pennsylvania to take it out and, remember, Justice Wilson as we note at length in our brief one of the leading expoz ters of the common law notion, and the sixth amendment requiring yun n n unanimity. One would think if the framers had dispensed with 400 years of uniform practice that somebody would have said something about it. But what you have is the reverse. You have Justice Wilson right after the constitution is founded talking at great length about how unanimity is, quote, indispensable. You have justice story in his commentaries using the same word, indispensable and any number of criminal law treatouses at the time, all reinforcing this notion. Here, louisiana and oregon have tried thousands of cases. In reliance on apadaca, the court said this was okay. Weve never suggested that it wasnt. Weve denieied cert in lots of cases. Can you compare the reliance here with the reliance in Franchise Tax board . I think, justice alito, id like to make both a Legal Comparison and a factual comparison. So starting with the law, i think its important to note that the state here is claiming to rely on apadaca but they are not defending the rule of apadaca which is the 14th amendment doesnt require states to have unanimous verdicts. Instead, theyre asking a court to adopt a new rule of sixth Amendment Law that the court has never adopted. I know the court last term as you note in part of those disagreements, some justices were saying its okay to come up and rehabilitate and old rule, that shouldnt forego stari decdec decisis there that i dont want to interrupt. We have a decision of this co t court, apadaca, and we could we could affirm it on on a Different Ground from the one that the exact one the state has advanced. But i want you to complete what you were saying. So let me give you three reasons why even if you take that as a given, stari decisis shouldnt carry the day then ill turn to the facts. Still sticking with the law, three things. Justice powells vote was an isolated vote where there was no majority for the court and it was, indeed, his vote was rej t rejected by the other eight. So i could ask you, this is so unfair, mr. Fisher, but could i ask you to take that out of your analysis and justmiainder analysis, thats an important consideration. On. Y if you assume this was just any old 54 decision, so i would then move to my second point which would be that 14th amendment rule even if adopted by a majority is a derelict in the law. It is isolated. It is really an abandoned relic of past jurisprudence and dont have to look further than last term in tims. You can look at the mcdonald opinion b and look at any numbe of other opinions from this court that say the same standards have to apply to the courts as the federal government. It would be an outlier, would be something that says, look, we have an exception here. Were going to treat this amendment differently. You know, we tolerate a pretty significant degree of vdiversit in state criminal procedure and this could be one of those sorts of rules where we say, you know, there are occasional times where we think that the state gets to decide something on its own. And so, yeah, its an anomaly. Usually, we do look in stari decisis reasoning 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. Well, justice kagan, i think, lit me respole let me respond to one thing. If you look at the courts incorporation jurisprudence, thats one place where the court has not acceptedanomalies. A very low ebb when it comes to states following the fundamental rules of the rule of the bill of rights. On that level, its a different situation than the ordinary stari decisis the pardon me . Excessive fine clause applies to the states recognize apadaca as an exception, recognizes the sixth amendment was the one exception to completing thats right, justice ginsburg. I think my argument today is even though thats been an exception for several years, it shouldnt go forward. It doesnt have any footing in the law. Theres no 14th amendment footing. So let me turn to the i think back to Justice Alitos question. I think you were asking me about convictions. I think this is another area where stari decisis has less to say than normal. Has a developed set of doctrines. That themselves designed to give states reliance interest in their past in past precedent from this court. So unlike the ordinary case Franchise Tax board and any number of other doctrines you have a whole separate set of doctrines the state can invoke to support its reliance interest well, we dont know how a decision in your favor in this case would play out in collateral review. Either in federal court or in state court. But do you think i mean, i can well envision seeing you up here in a term or two arguing that this is a the rule that youre trying to persuade us to accept today is a watershed rule of criminal procedure. You think theres a frivolous argument . I dont think its frivolous, justice alito. The best thing the state will have to say for itself in that respect is duncan, itself, when the court incorporated the right to jury trial, duncan, itself, was not held to be retroactive in the opinion. But justice alito, the core point that im making to you today is in deciding whether to overrule a past case, absolutely reliance interests are at stake. But there are separate doctrines to protect those reliance interests so that i dont think you should give undue weight in this situation. And i dont think the court has given those kinds of things undue weight in the past. I would direct the court back to its mcdonald decision where it cataloged all the times over the years in the courts incorporation jurisprudence that it has overruled past cases. I dont think theres any other area of law in the courts jurisprudence where stari decisis over the years has held less value what about the sorry. Go ahead. What about the size of the jury if we were to accept your argument here, how or could we draw distinction between this case and the precedents on justice kavanaugh, i think williams, itself, tells you how you would do that. It says that the question under the sixth amendment is whether the feature at issue is an indispensable feature or as the court also put it, an essential feature of the right to jury trial as we practice it in this country. What the court concluded in williams after looking at historical sources was they were mixed and probably the better reading of those sources were the 12person rule, just a historical accident. So that is a holding of this court that puts it on the other side of the ledger from the uniform commonlaw authorities when it comes to unanimity and that holding moreover, justice kavanaugh, would be spientitled stari 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 dten be enough . The key principle is not how many, its the degree of agreement. My core proposition to you today is a 102 verdict is less guaranteed to be accurate and less guaranteed to be consonant with the purposes of jury trial than a 60 verdict. I think maybe that you prefaced that by saying thats a key part of the distinction youre trying to draw . Maybe it is the very distinction. I know, i guess im not sure thats selfapparent. I dont know if you play it out in game theory or something, but if you ask the defendant, what do you want, do you want six and they have to agree across the board, or do you want 12 and you got to convince thats not immediately apparent to me which i would take. Mr. Chief justice, can i give you a legal answer and a practical answer . As a legal answer, the the unanimity required even of the sixperson verdict is more consistent with, in fact, is the only consistent outcome with the purposes of the jury trial clause because the core purposes are effective deliberation toward an accurate decision and a Cross Section of the community. Remember, what happens in louisiana and in oregon is that a Cross Section of the community somewhat by design can be left out of and canceled out of those deliberations and thats very different than a 60 verdict when it comes to the way things happen in the jury room and the Public Confidence in that verdict. And ill also give you a practical answer to your question, when louisiana was considering changing its law and, indeed, did change its law, which i would say parenthetically is also something that i think should be taken into account when it comes to stari decisis that louisiana changed its law, there was a prosecutor that testified before the legislature, said he sometimes used to charge felonies instead of misdemeanors because it was easier to get a 102 verdict than a 60 mr. Fisher, lets say im not entirely persuaded by your functionalist arguments about the distinction between unanimity and numbers. Between this case and williams. Got anything else besides these functionalist arguments about the real great importance about unanimity and the relative lack of importance about numbers . I think what i would say to you, justice gorsuch, is the text of the sixth amendment understood through its purpose distinguishes this case. So let me explain what i mean by that. The text of the sixth amendment says the defendant has a right to trial by jury. And so the key is what does that phrase mean . And 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, in fact, if we have a jury who hangs or cant reach a verdict, theres a mistrial. So we dont even have trial by jury. So thats inherent in the term. I think what the court said in williams is that, of course, there are going to be some features of the common law. Imagine, for example, that the jurors all had to wear a particular color jacket to courtroom. There was 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 certain things that happen to occur at common law that wouldnt necessarily be brought forward today. Now, i think maybe what youre driving at to some degree is i think there is an argument and there was a powerful argument made in williams that the 12person requirement shouldnt be thought of that way. There were some people who thought the 12person requirement was also a very important feature. But, of course, there were others who didnt. Many other commentators thought, well, no, 12 people is just a fanciful number, its inherently arbitrary, it doesnt really mean anything. So all were getting at in this case i think are whats the core meaning of the phrase, trial by jury . Do you think, mr. Fisher, that we would also have to overrule ludwig versus massachusetts if we overruled abadaca . If i understand it right, there was another case in which Justice Powells unusual approach to incorporation ended up being the deciding vote in the case. About a twotier jury system. Thats right, justice kagan. I think my position would tell you if you were to revisit that, Justice Powells vote in that case like this case doesnt set up a rule of law the court would adhere to but still have a separate sixth amendment question in ludwig sorry which the court divided on and you consider that case on its own terms and to be perfectly candid with you, i dont even know what the common law would say about the twotier jury system. That was not something the Court Considered in that case and to be a whole different set of arguments. Do you you started off an then i told you to stop, but i thought id give eye you an opportunity do it again. What are we to make of this 414 reasoning of that apodaca and what do you think the rule should be about stari decisis Going Forward, do you need a majority, do you just need a controlling rule . Whats the right way to think about that . Well, i can tell you what i think, i can tell you what the court has done. I think there are times where a single vote could be accorded stari decisis effect, particularly if its a narrower ground within the rule. You have other cases more like this where marx doesnt so easily fit onto that system and i think the most recent time the court dealt with a situation like that was the hughes case a couple terms ago where you had a 414 vote in the prior case. What the court said is were going to consider this issue fresh. Another case drew deep divisions within the court as to what the substantive meaning of the amendment was. Justice suitor said i do not begrudge there was no majority of the court that had previously spoken to it and our votes were all over the map. What about a party that has to make decisions about how its going to order its affairs, it wins it but does it in a 414 position. What is the party to do . All right, we won this case but cant rely on it because we dont know, because it has no stari decisis effect. What happens, years go by and nothing happen, the court doesnt come back to that question. Cujustice alito, in the ordinary case, the party would have every right to rely on this courts decision subject to the ordinary principles of stari dec decisis were deciding. If the party did rely on the prior case, theyd defend it instead of ask the court for a different rule and tells you something about how discredited the fifth vote in this case is which i think makes it almost a universe of one. I cant think of ive looked and havent found any other 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 on which the previous decision rests. Can i come back to the math question that was alluded to earlier . Im not, myself, i must confess, capable of doing this math, but somebody could. So if you hypothesize that jury pool with a certain d b percent of jurors who are inclined to acquit and you ask, is there a greater likelihood of acquittal with a 60 verdict than a 102 verdict or 111 verdict or if the state decides to have a jury thats bigger than 12, a 151, a 15person jury, 141, 191, when we get to the point where the chance of acquittal is is in favor of the nonunanimous rule, would that be unconstitutional . My rule is that any time the state deviates from unanimity, it is unconstitutional. So even if a state were to go beyond the number of 12, and i think the reason why is because its a different phenomenon when somebody disagrees in a jury room. And i dont mean to be presumptuous, but ive heard some justices of this court remark theres a difference between a 90 opinion, 81 opinion. Someone puts reasonable good faith opinions on the table, requires an answer from another, sharpens one thinking i mean, really . I think in the jury room, that would be the case. You really want to argue that . If the jury had to be as big as a grand jury and representing a criminal defendant, you would rather, you would say we want, 60 is better for us than 211 . Justice alito, perhaps, there would be a number where that argument would start to be difficult and i think that what i would tell you is the history and tradition of this country makes it highly unlikely that were ever going to see a system like that. What we have uniformly, almost, throughout the states is a ceiling of 12. And i think you talked about a math problem. I think maybe its also helpful to remind the court of the courts decision last term in flowers where the court talked about the math of preemptory challenges and i think eyou hav a similar math problem here. Have one or two members of minorities on a jury, ar