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Hoping for three more votes

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There has been much discussion of certworthiness of late. Should certworthiness play a role in granting emergency relief on the shadow docket? What about the sharp decline of cert grants? For one reason or another, the Court simply is getting more stingy with certiorari.

Justice Gorsuch’s solo dissent from denial of cert in Cunningham v. Florida speaks to this frustration. For some time, Justice Gorsuch has objected to Williams v. Florida (1970), which reversed precedent, and upheld the constitutionality of a six-person jury. Justice Gorsuch dissented from denial of cert on this issue in Khorrami v. Arizona (2022). Justice Kavanaugh did not join Justice Gorsuch’s dissent, but would have granted the petition.

But now in Cunningham, Justice Gorsuch is all alone, left to hope for three more votes. He wrote:

If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States fromrevising 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. If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.

I think it is fairly rare for a Justice to openly hope for three more votes in such explicit language. If I had to guess, Justices Alito and Barrett are not sold on the case. Indeed, like with the jury unanimity requirement, overruling Williams would raise the retroactivity question, as many convictions would be jeopardy. At present, at most, there are three votes for cert, and not enough for a grant. This issue will lay dormant for the foreseeable future.

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