Founders Valued the Jury Trial Right; Will the Supreme Court Follow Their Example?

The U.S. Supreme Court has just added another case to its docket for the upcoming 2026–27 term, a move likely to captivate those with an interest in early American history.

What’s at stake in Kian v. Florida is whether the Sixth Amendment’s guarantee of a jury trial requires a 12-person panel in every criminal proceeding. Florida’s laws say otherwise. The state’s statutes declare that “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 subsequently sentenced for practicing chiropractic medicine with a suspended license, asks the Supreme Court to overturn his conviction and reintroduce the 12-person jury in Florida, and in the few other states that still do not employ such a panel for all offenses.

To prevail, Kian must persuade a majority of justices to overturn the Court’s 1970 ruling in Williams v. Florida, which permitted six-person juries in certain criminal cases. “Williams was incorrectly decided,” Kian contends, “and it conflicts with how the Sixth Amendment was understood at the time the Founding Fathers drafted it.”

At least one justice appears prepared to embrace that view and side with Kian. In 2022, the Court declined to hear a related case about the constitutionality of an eight-person jury, Khorrami v. Arizona. In the dissent, 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 again chose not to review a six-person jury case, Cunningham v. Florida (2024). And once more, Gorsuch filed a pointed dissent. “Florida does what the Constitution forbids because of us,” he asserted. “In Williams v. Florida, this Court issued a transformative decision in 1970 approving for the first time the use of six-member panels in criminal cases.” He added that the Court’s action, in his view, diverged from the original meaning of the Constitution, from centuries of practice, and from a host of precedents established by the Court.

Gorsuch’s historical case is persuasive. The Sixth Amendment’s jury-trial right traces back to British common law. That tradition, as explained by William Blackstone in 1769 in his widely read Commentaries on the Laws of England, rested on 12-person juries. “The founders of the English law,” Blackstone noted, “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.”

Arguably, the claim that the right to trial by jury stood paramount for America’s founding generation would be an understatement. Among the “repeated Injuries and Usurpations” listed against King George III in the Declaration of Independence is the assertion that the Crown deprived the people, in many cases, of the Benefits of Trial by Jury.

Similarly, when Anti-Federalists complained in the late 1780s about the absence of a Bill of Rights in the new U.S. Constitution, they often lamented the lack of broader protections for jury trials. “How does your trial by jury stand?” Patrick Henry pressed 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 ultimately found its way into the Constitution to address those Anti-Federalist concerns.

Kian v. Florida thus places before the Supreme Court an invitation to rectify a perceived misstep from the past while affirming a cornerstone constitutional right that the founding generation clearly valued.