The Supreme Court ruled Monday that for defendants to be convicted of crimes, juries must decide their guilt unanimously, not by a simple majority or any other fraction. If that seems obvious, it may be because in the federal judiciary and the courts of 48 states, this is already the law and has been for a long time. Oregon and Louisiana were, until this week, the only outliers.

In applying the Sixth Amendment to the entire nation, the court ensured defendants in those two states could avail themselves of its full meaning of right. More than that, the opinion by Justice Neil Gorsuch struck a blow for originalism, the theory that the words of the Constitution should be interpreted consistent with the public understanding of them at the time they were enacted.

That he did so with the concurrence of three liberal justices (Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor) and one conservative (Brett Kavanaugh) shows originalism is not just a theory to advance conservative ideas. It is a theory about how to find the truth of a thing, and how not to impose a judge’s own opinion in place of the law. //

In 2020, Gorsuch finds it baffling that “the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment in the first place.” Instead of a justice’s own opinion trumping all, Gorsuch eloquently calls for a humble approach to the law:

When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed. As judges, it is not our role to reassess whether the right to a unanimous jury is ‘important enough’ to retain. With humility, we must accept that this right may serve purposes evading our current notice. We are entrusted to preserve and protect that liberty, not balance it away aided by no more than social statistics.

Humility is the essence of originalism. When we read any document, we interpret the words according to how they are commonly understood. That is so self-evident, it is hard to imagine doing it any other way. For older works, where the meanings of words may have changed over time, we look to see what the author meant by asking how his audience at the time would have understood it. A more strained reading of things is usually an attempt to prove a point not contained in the text, grafting the reader’s wishes onto the writer’s words.

Judges in the ’60s and ’70s often did not even bother with the strained reading, instead inventing balancing tests they thought best reflected the way the rights and benefits enshrined in the law should apply. That’s not a bad idea for the people writing the law: the legislature. But for a profession dedicated to merely interpreting the law, it is moral malpractice. //

Gorsuch’s historical analysis of the meaning of trial by jury in 1791 is thorough and conclusive. When the Sixth Amendment was written, “unanimous verdicts had been required for about 400 years,” Gorsuch writes. “If the term ‘trial by an impartial jury’ carried any meaning at all, it surely included a requirement as long and widely accepted as unanimity.”