reaffirmed the well settled rule that incorporated provisions of the bill of rights apply the same way to the states as they applied to the federal government taking that rule is the given the state does not defend justice powers pivotal vote in the apple doc a case at all that is not in c courts or in federal courts this court should reject that argument as the court has said many times over many decades the th amendment requires a unanimous verdict to convict in particular what the court has said is  right to trial by jury carries with it the essentials of the common law and the common law authorities are uniform explicit and absolute unanimity is an absolute requirement to trial by jury and the reasons that the common law commentators gave for that rule are the resident just as powerful a now as they did then in a nutshell we are not prepared to take away somebodies liberty unless a cross section of the community uniformly agrees that criminal punishment is appropriate now i don't think the state disputes that historical account that i just gave you or even that unanimity is central to the proper functioning of the jury trial right instead what the state says are two primary things st that the drafting history of the th amendment suggests that the framers meant to dispense with that historical rule and nd that that historical requirement unanimity is no more important than the twelve person rule which this court said is not part of the th and williams so let me turn to those two arguments let me start with the drafting history we think for three reasons the state has over read the drafting history st is the court itself has said in cases dealing with provisions like the nd amendment the double jeopardy clause we do not read into a deletion of language any meaning when there is no contemporary evidence that it was designed to change the meaning of the provision and that's 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 didn't 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 doesn't matter whether you have unanimity in the provision it requires it either way and i think that i mean to give them to be fear even if you see some have unanimity some do and you've got a draft that says unanimity i don't understand why you would take it out and just then be able to argue later well it doesn't matter whether it was in or not it's in there in the draft why would they take it out what will the best historical evidence mr chief justice that it was it got latched on to a debate about th take away all of the elaboration of that of the right to trial by jury and so i think actually the best example also to respond is is philip is the pennsylvania constitution which at the time of the founding required unanimity explicitly and then justice wilson actually amended the rewrote the constitution and pennsylvania to take it out and remember justice wilson as we know it at length in our brief was one of the leading expositors of the common law the notion of trial by jury and the th amendment requiring unanimity and i think that was the last thing i wanted to say about the drafting history is that one would think that if the framers had dispensed with four hundred 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 founding talking at great length about how unanimity is quote indispensable you have just a story in his commentaries using exactly the same word indispensable and yet any number of other criminal law treatises at the time all the rich are gathered in our brief in a greater length than the a c l u brief a couple of dissents about the importance of starry decisis about the impropriety of overruling established rules i'm thinking about the dissent in the franchise tax board and the dissent in louisiana oregon have tried thousands of cases in reliance on op of doc the court said this was ok we've never swede never suggested that it wasn't we've denied cert in lots of cases so can you compare the reliance here with the reliance in franchise tax board and in nick i think just as a lead i'd like to make both a legal comparison and a factual comparison so starting with the law i think it's important to note that the state here is  you know in part of those disagreements some justices were saying well it's ok to come up in rehabilitate an old rule that shouldn't that's a fair point but we're not tied in deciding this case to the position that's taken by the state we have a decision of this court up the docket and we could we could affirm it on on a different ground from the one that is the exact on the status as vance but i want you to completely if you were sincere let me give you three reasons why even if you take that as it is a given start decisive shouldn't carry the day and then i'll turn to the facts but still sticking with the law three things one is remember justice powell vote was an isolated vote where there was no majority for the court and it was indeed his vote was rejected by the other eight so now i ask you this is so unfair mr fisher but could i ask you to take that out of your analysis and just pretend for the remainder of analysis i think that that's an important consideration which i'm not quite sure how to think about but if you assume that this was you know just any old fifty four decision so i would then to move to my nd point which would be th macdonald opinion and you can look at any no other number of other things from this court that say the same standards have to apply to the states as the federal government i mean it would be an outlier it would be something that says look we just we have an exception here we are going to treat this amendment differently but you know we tolerate a pretty significant degree of diversity in state criminal procedure and this could just be one of those sorts of rules where 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 it's an anomaly usually do look in story decisis reasoning for anomalies but this is not the kind of anomaly that should concern us overmuch because in general criminal procedure law is a loaded with anomalies well justice kagan i think let me respond one thing that i hope isn't fighting the premise but what i would say is if the if you look at the court's incorporation jurisprudence that is the one place the court has not accepted nominees and where the court has said that started as isis is a very low ebb when it comes to states following the fundamental rules of the road and the bill of rights so i think that on that level it is a different kind of a situation than the ordinary star that's right just as ginsburg and i think my argument today is that even though that's been an exception for several years it shouldn't go forward it doesn't have any footing in the law there is no little let me comment footing so let me turn to the to i think back to justice  because i think you're asking about convictions and i think this is another area where story decisis actually has less to say than normal and that's because the court already has a developed set of doctrines like the  themselves designed to give states reliance interest in their past and past present from this court so unlike the ordinary case franchise tax board and any number of other doctrines you have a whole separate set of  can invoke to support its reliance interest and well as we don't know how the 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  can well in visions seeing you appear in a term or two arguing that this is a water of the rule that you're trying to persuade is to accept today as watershed rule of criminal procedure you think that sort of a frivolous argument i don't think it's frivolous justice alito i think the best thing the state will have to say for itself in that respect is that duncan itself when the court incorporated the right to jury trial duncan itself was not held to be retroactive in the day to stop no opinion and ensure organ summerlin the court reaffirmed that precedent but alito the core point that i'm 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 don't think you should give them undue weight in this situation and i don't think the court has given those kinds of things under weight in the past and i would direct the court back to its mcdonald decision where it catalog all the times over the years in the courts incorporation jurisprudence that it has overruled past indispensable feature or is the court also put it in essential feature of the right to jury trial as we practice it in this country and what the court concluded in williams after looking at historical sources is where they were mixed and probably the better reading of those sources were that twelve person rule was just a historical accident and so that is the holding of this court that puts it on the other side of the ledger from the uniform common law authorities when it comes to memory and that holding moreover just as calvin i would be entitled to start decisis effect do you know so we would have to principle is not how many it's to degree of agreement and so my point my core proposition to you today is that a ten to verdict is less act less guaranteed to be accurate and less guaranteed to be consonant with the purposes of jury trial than a six verdict and i think maybe that's help and you preface that by saying that's a key part of the distinction you're trying to draw blood maybe it is the very distinction that i knew but i mean i guess i'm not sure that it's self apparent i mean i don't know who would you play it out in game theory or something but if you asked the defendant would he want to want six and they have to agree across the board or do you want twelve you've got to convince that's not immediately apparent to me which which i would take when mr chief justice can i give you a legal answer and a practical answer so as a legal answer the the unanimity required even of a six person verdict is more consistent with in fact is the only consistent outcome with the purposes of the jury trial cause because the core purposes are effective deliberation  towards an accurate decision and a cross section of the community and i remember what happens in louisiana and in oregon is that a cross section of the community somewhat by design can be left out of an cancelled out of those deliberations and that's very different than a six dollars verdict when it comes to the way things happen in the jury room and the public confidence in that verdict and 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 apparent that a cli is also something that i think should be hidden in into account when it comes to story decisis that louisiana has even changed its law that during those deliberations there was a prosecutor who testified before the legislature and said that he used to sometimes charge felonies instead of misdemeanors because it was easier to get a ten to verdict than it was to get a sixty mr fisher let's say not entirely persuaded by your functionalists arguments about the distinction between unanimity and numbers between this case and williams have you got anything else besides these functionalist arguments about the real great importance about unanimity in the relative lack of importance about numbers i think what i would say to you just as gorsuch is the text of the th amendment understood through its purpose distinguishes this case from boys and so let me explain what i mean by that the text of the th 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 that the defendant got a jury but that the trial by jury included the way the jury resists decision in fact if we if we have a jury who hangs or can't reach a verdict there's a mistrial so we don't even have trial by jury so that's 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 the just that the jurors all had to wear a particular color jacked to court there's going to be certain incidental features of the right to jury trial that don't necessarily have to be read along amendment there would be certain things that happen to occur a common law that wouldn't necessarily be brought forward today now i think maybe what you're driving at to some degree is i think there is an argument and there was a powerful argument made in williams that twelve that the twelve person requirement shouldn't be thought of that way there were some people who thought the twelve person requirement was also a very important feature but of course there were others who didn't board coke which the court quoted and many other commentators thought well no twelve people is just a fanciful number it's inherently arbitrary it doesn't really mean in which justice pauwels unusual approach to incorporation ended up being the deciding vote in the case about a two jury system that's right justice kagan i think that all my position here today would tell you if you were to revisit that is that is that just as powers vote in that case just like in this case doesn't set up a rule of law the court should adhere to but you would still have a separate th amendment question ludwig the court and so on which the court divided on and you to consider that case on its own terms i'd give you an opportunity to do it again i mean what are we to make of this for one for the reason and of of the data and in what do you think the rule should be about starry decisis going forward do you need a majority do you just need a controlling rule what's what's the right way to think about that well i can tell you what i think and i can tell you what the court has done i think that there are times where a single vote could be accorded story decisis effect particularly if it's comfortably a narrower ground within the mercs rule but then you have other cases more like this where marks doesn't so easily fit on to that system and i think that the most recent time the court dealt with a situation like that was the hughes case a couple terms ago w fourteen vote in the prior case and what the court said is we're going to consider this issue fresh the court did the same thing in seminole tribe and i have in seminole tribe's a good example of a case that drew deep divisions within the court as to what the substantive meaning of the op at the moment was but justice souter in his dissent said i do not begrudge the majority for considering this issue fresh because there is no majority of the court that are proper that have previously spoken to it and our votes are all over them and what about a party that has to make decisions about how it's going to order its fair us in the wake of the decision that it wins but does it in a four hundred and fourteen decision what are the what does that party supposed to do say well all right we won this case but we really can't rely on it because we don't know because it has no starry decisis of fact and then what happens as the years go by and nothing happens the court doesn't come back to that question which is alito i think that's at least in the ordinary case the party would have every every right to rely on this court's decision subject to the ordinary principles of story decisis that we're deciding i think the one thing that makes this case on usual is you would think that if the party did rely on that prior case they'd at least come up and defend it instead of ask the court for a different rule and i think that just tells you something about how how discredited the th vote in this case in this case is which i think makes it almost a universe of one i can't think of i've looked and i haven't found any other case where somebody has come to come up to this court and said i'm not 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 i'm not myself i must confess capable of doing this math but somebody could so if you hypothesize a jury pool with a certain percentage of jurors who are inclined to acquit and you ask is there a greater likelihood of a quibble with a six one when we get to the point where the chance of acquittal is who is in favor of the non unanimous rule with that being 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 twelve and i think the reason why is because it's a different phenomenon when somebody disagrees in the jury room and i don't mean to be presumptious but i've heard some justices of this court remark there's a difference between a ninety opinion and one opinion when somebody puts reasonable good faith views on the table and requires an answer from the others that sharpens one's thinking it leads to better results sometimes and i think at least in a jury room that would be that you really want to argue that sort of thing if the petit jury had to be as big as a grand jury and you were representing a criminal defendant you would rather you would say we want sixty dollars is better for us than twenty one to one justice alito perhaps there be a number where that argument would start to be difficult and i think that that what i would tell you is the history and tradition of this country makes it highly unlikely that we're ever going to see a system like that what we have uniformly almost throughout the states is a ceiling of twelve and i think you talked about a math problem and i think maybe it's also helpful to remind the court of the court's term decision last term and flowers with a court talked about the math of peremptory challenges and i think you have a similar math problem here which is if you have one or two members of a minority on a jury it could be a racial minority it could be a political minority it could be a religious minority are we really prepared to say that those one or two votes can be utterly canceled out to the racial origins of this rule have an impact on how we think about star case i think they do justice kavanagh i think that how did it how should we factor those in i think in a couple ways i think when you talk about how reasonable their alliances from the state i think it's perhaps justifiable to look at the origins of the law that it's defending but i also think more directly if you're asking whether justice pauwels th amendment reasoning should stand he didn't even consider this history i'm not sure it was put in front of the court and as the court has said many other times like in mcdonald like in pain you would read as when reading the provisions of the bill  the constitution of puerto rico and the people who made the rule in the united kingdom all of which allow non unanimous juries if they thought was inactive for that reason that might be constitutional but this statute is not constitutional in the oregon statute is not constitutional because of the the origin that you attribute to them no just the school of justice alito let me make sure that i entered and clear with the court we think that purpose perhaps could inform the court's decision making and particularly if you're looking at starry decisis it could inform whether to stick with an old th amendment rule but we don't think it's essential to our th amendment argument and we think if a state had followed the old recommendation before the six and that was incorporated in the states that i'd be making all of the other same arguments i'm making here today but i think the thing i would leave you with before i sit down for rebuttal is that it is telling justice alito i think that no state has ever done that the only two states that have ever deviated did did so under circumstances where the cross section of the community that the jury trial was designed to bring into the courtroom had changed and part of the design was to leave a part of that cross section perhaps out of deliberate if you lose you mentioned a couple of times earlier in your argument where the court has said that a decision is entitled to less starry deci effect because the parties have come into court and tried to kind of improve the reason and so the court has said of the earlier decision and as i understood what you were saying you were saying that this even goes beyond that right could could you explain why or is it the samus that never liked that argument so is this just is your argument just the same thing no i think it's a step further justice kagan i think even if you believe the parties ought to be entitled especially when there's many years between an old decision a new one  to make that defend the old decision with the rhythms in the precedents and the ideas that have intervened so for example to take a case like citizens united perhaps the government could have come in on that case in the other st amendment arguments in support of that statute in that case i think we have here something entirely different though the state is not even making a th amendment argument they're asking the court to adopt a rule and me just be clear the rule that they're asking the court to adopt is the th amendment does not require an anatomist verdict five justices nappa doc unanimous verdict and had said it many other times but i think in that case it was integral to the holding and so what i understood the four justice plurality to be saying an apple dhaka was doing what justice white had said in a footnote and duncan it could do which is reconsider the old precedents but even if i didn't the court should decide this case on the st issue because nothing in the text structure or history of the th amendment requires unanimous jury verdicts nor has this court ever held that the framers wholesale adopted the common law in fact the courts expressly rejected that view in her with regard to the bill of rights and in williams those correct holdings plus historical evidence that the framers expres rejected unanimity in the th amendment or fatal to petitioners request to add back words that the senate rejected in seven hundred and eighty nine the reliance interests here are overwhelming because the th amendment is not a code of criminal procedure over two centuries of stay for two centuries states have adapted their criminal justice systems to their particular circumstances and louisiana for the last fifty years has specifically relied on this court's expressed approval of the system that challenged here today again we have thirty two thousand people that are currently serving time for serious crimes and each of these convictions would be subject to attack is reversed overruling app attack or strikes would strike at the foundation of widespread state practices that include indictment by information and juries of fewer than twelve the beauty of our system is that people can change the rules so if they now want to require unanimity they can do so they can amend their state laws as louisiana recently did or they can at five justices adhered to justice ginsburg we don't think that justice powells decision was entirely clear with regard to the rule as it would apply we don't believe that that was central to his holding or to his position and his plurality opinion and our position would be that one justices opinion that is not central to his his plurality opinion plus four dissenters does not equal is not equal to a holding well then we are we having to address this fresh just as you really seem to want us to do i mean that seems to me the mission that we are in a proper place to to take this up afresh in a lot of other cases where we've been facing similarly splintered decisions and the court has come back and addressed the question for without considering start a site in those cases sometimes the court can't reach majority opinion sometimes it's just unable to and why doesn't the state take that risk when it relies on a decision that is so splinter discourse and i think that louisiana reasonably relied on a decision of this court that it that non unanimous juries were constitutional they also did that on the tail end of a decision by this court in williams that found that a six man jury was also constitutional and i felt x six person jury so we can put that aside redoing with what humanity and i don't think you're arguing that the court did anything improper and or do anything improper in some old tribe by taking up the question for us and i'm just curious why it would be different here and why the state shouldn't be assigned some degree of risk assuming risk by proceeding in this area or the reliance of eleven member of the court's opinion that is rather i think fair to say idiosyncratic well for one thing i think that incorporation doctrine evolved over time so i'm not sure that the state was it was it was reasonable to expect the state to ignore an actual holding in the case and to support that that would change over time so that's that's one response that i have to that question my nd response is that i think you can take it up afresh but but i also this is a non textural ron we're just on that general merrill so i mean you don't really want us to take it up afresh do you i  what the th amendment requires justice kagan i think that given the evolution of incorporation theory we find ourselves in a position where it is even more important to get the text right and to get the history right so if that means taking that issue up afresh but you see i think i agree with justice alito you have some strong reliance interests here but but your reliance interests are only relevant in the context of an argument from story decisis and i guess i would like to know them how are your alliance interests relevant what argument from story to sizes are you making what we think that the text and the history do not include a non jury verdict we think that that's a constitutional that is a choice that states can make and so you know that's we think that the four justices plus justice paul's decision were a ruling that constitution would have insisted on a jury trial for civil cases where property is at stake but not in criminal cases were liberties at stake and lives i believe that the structure and the history of both read ultimately on the textual answer reach the same result i don't think that i disagree with the supreme court's analysis on the th amendment i understand that but spot for me a moment that the history demand and that when we are talking about a non textual right i think that it is very very important that the court exam get the history right and history tells us that this that unanimity was rejected for a reason that there were there was a very specific decision that was made to reject unanimity it was proposed it was rejected it was debated it was discussed it was a known issue because four states h jebus a couple of decisions from the supreme court put the unions i notice that things should that the constitutional theory was on shaky ground and here you have a series of cases much older telling you that the incorporation theory was on shaky ground but you're talking about a parade of horribles if we rule against you how about the parade of horribles if we rule in your favor how do we decide what's at the essence of the common law actually trial would issues like having a fair cross section of the community in the veneer be in question we have a case that says that's incorporated were part of the discussions at the convention are they going to be open to attack now to if we rule in your favor there's no history there's known anything and what made the cut after the debate over what was missing put the details we have a bunch of people who were in favor of the cuts telling everybody else everybody understands  verdict is the standard so we have part of the constitutional debate hamilton himself who drafted it and took out the right to unanimous jury basically said during the the discussion is so self evident we don't need to include she looking at history just in terms of what was taken out but without the context of the discussion not exclusively just a set of my i think we also would agree that due process and an equal protection play a role i mean we don't have requirements anymore that it's only twelve white male freeholders exactly so you not think that's an example of how we did not adopt the common law in all of its its  historical terms we actually congress adopted some of that language over time it was not embedded in the constitution so we know that there was an historical debate we know that states had adopted a different  rule and then some of them wrote this rule into their own state constitutions known debated problem there's a mat there madison proposes an amendment thinks he solved this problem and then it gets rejected by the senate rejected i mean what one account is it was totally unnecessary everybody understood a jury trial meant unanimous agreement so we took it up with this we didn't want to clutter up the clutter it up with a number of other terms and i don't and i think that the history showing that states felt that it was important to write it into some of their constitutions indicates that there certainly was at least a view that it should be written and by some and not so i don't think it's a fair reading to to assume that that was simply because we would all know that it would be there especially because they knew that they were writing a document for the future for the sake of argument assume that i think the th you have the starry decisis except you're giving that away and i don't know what to make of that because i would think that what you would do is to say something like this is an error in our incorporation doctrine there's no question that it is but it's been an outlier for fifty years it's been completely administer bill it's been completely clear states have had every right to rely on this for fifty years it doesn't matter whether it was wrong because overruling something requires more than just the decision be wrong it's been there are states of the light on it there's no reason to change at the end story decisis but you're telling me that justice pavel's opinion isn't in total to presidential force isn't entitle to start a decisis effect so i don't know what to do with that argument anymore justice kagan i agree with everything that you said about the reasons why this court should affirm apage aca and that it should be given starry decisis of fact i think that we are struggling with the fact that justice paul's decision doesn't seem to be the view of the court and that the text and the history also i have odd we strongly and firmly believe are on our song here not the only state who has an interest here and in fact there's only one state going forward as of this moment that has an interest in this and that's oregon oregon might change its will were might not change its will the brief in oregon doesn't make the argument you're making argand's says it should be made what this brief does not do it does not address the merits of whether apodaca was correctly decided and i think that oregon finds itself in a position where the democratic process has stalled in anticipation of this decision so they've they've written a brief that expressly i think emphasizes all of our reliance interests puerto rico has similar reliance interests there's a long line of cases that dealt with territorials and the right and the the constitution south in the territories they have similar interests too so we do think that reliance interests are very very important we believe that through no judgment was correct as it is certainly true that we in recent years i've rejected the two track idea about incorporation but the opposite isn't a crazy argument as recently as mcdonald there were some voices on this court that was more essential in making that argument with respect to the nd amendment and earlier there were it's a very respectable argument it has won the  hasn't won the day completely but that's what up at dhaka rests on well justice alito if you're telling me that there is a little bit of daylight then i'll take it i mean i think that you know we but i also believe the history that th history shows that you know nominee was rejected in that that is the correct view is so we are not entirely repudiating the app attack and judgment and we do have fifty years of reliance which is why i emphasize that we have thirty two thousand people who are incarcerated right now at hard labor for serious crimes and every one of them would be subject would would be able to file an appeal but we're in the most no no no just i mean i can't i don't understand why i would applaud people who were unanimously convicted or maybe a bit but i think the stronger case would be those people who were convicted by juries that were not in any of this and how many of those are there we don't know because  know there are many ideas with all the work gone into this is anybody got any rough idea of what percentage of those people who are convicted are convicted by new non unanimous jury there's just no reliable reliable data would think can i fairly think that if there had been some data even if you just take a sample you would be telling us and therefore the fact that you're telling us that there are a case actually is a hispanic tradition and i don't know you might have to bring up the insular cases you might you might have to revise them you might have get into the status question puerto rico is worrying me so is there is there something you want to say about the situation we have the same tradition but i bet that you have the same tradition but you don't have as a matter of fact the whole system of  trials that grows out of the civil tradition or that's why i think all thirty two thousand can or are is that was you i got past the thirty two thousand i now want to know since you've looked into puerto rico is there a particular problem there if we overturn up a duck i believe there is no you believe there is i just want to know what there is rather than my making it up because the territorial decisions were based on the authority of congress to write laws that were different for territories not withstanding the fact that they still came under the protection of the constitution i think that there's a problem so it's the same the issue here is does the th amendment require unanimity and unless you're going to continue a special carve out for the territories then they have the same question the thirty two thousand dollars is the reason you don't know because the jury is not typically polled or because it is not always polled and because the defense that is a responsibility of the defense to do that and even in some cases where it may have been it may not have been recorded or kept and so the the the case files are  be very inconsistent this we do know that we are already receiving a flood of these cases as is this court we know that you know we filed twenty five briefs in the louisiana supreme court last friday so we have a this case this is certainly unsettling the cases but because a number of those people pleaded guilty based on their expectation of potential of facing a ten to verdict the criminal defense attorneys filed an anxious brief arguing that point we also have people who were receive every one that went to trial received this jury instruction so we're not saying they all when we are saying that every one of them could file and it was like throwing the hard dog out the real ones if i believe one fairly clear in the law that same federal rules apply to states if we incorporate but you do have a point if you say there are anomalies in the law and perhaps we should leave the anomaly alone and that's where you bring in your reason the reason being that thirty two thousand people and so it's ok i got that structure is there any other instance you can think of where despite a contradiction with your allowing under my assumptions to remain a legal contradiction the court says ok because let sleeping dogs lie otherwise we get serious har your honor i think that one of the significant lines of jurisprudence that comes to my mind is roe i mean i you know has it take to bring that into this but i do think that's an area and i think that any time you have a non textural right that that the court has relied on discussed related to in passing i mean or are quoted in passing over time and change incorporation doctrine that it is that much more important to get the text and history right so we think that happened was that the judgment and abba docket was correct we do have enormous reliance interests centrists you say we should worry about the thirty two thousand people imprisoned one might wonder whether we should worry about their interests under the th amendment as well and then i can't help but wonder w should we for ever and scott's an incorrect view of the united states constitution for perpetuity for all states and all people the knowing them a right that we believe was originally given to them because of thirty two thousand criminal convictions in the easy and no justice course it but we don't believe that it was a right that was given to them in the th amendment i understand that i'm talking about a reliance argument doesn't that greatly diminish a single state's claim of reliance with respect to a subset of criminal convictions when we're talking about the constitution that's supposed to endure one least of all me is going to stand here and diminish anyone's liberty interests i think that so so i'm not i wouldn't take that position but even in long line of this court's significant decisions related to criminal law and criminal procedure the court has applied them in a forward fashion instead of retroactively so i mean that's a concern for us well for the cherry record that's not the case of retroactivity we can properly address here hasn't been briefed as to be decided below justice ginsburg we certainly do appreciate you not addressing that issue without our opportunity to brief it i would point out that our law that we just passed makes the law it does draw a line and it says that it will apply to all crimes that unanimity will apply to crimes that were committed after january st two thousand and nineteen so to some extent we are talking about at least some retroactivity because we've already made a decision to address it going forward and i pick up on just discourse which is question so i can so assume that the six member requires unanimity i know you disagree and assume that our law ordinarily requires incorporation against the streets of rights that apply against the federal government's w who've been convicted and sentenced to life ten to or one hundred and eleven who otherwise would of not been convicted so that seems like a serious issue for us to think about in terms of overruling and the nd is that the rule in question here is rooted in a in racism rooted in a desire apparently to diminish the voices of black churches in the late eight hundred and ninety s so do either of those two and that doesn't go to the th amendment that goes to the star decisis angle to either of those two things i guess i should say why aren't those two things are not off to over rule if you accept the role is still requires ten so i don't think it's fundamentally unfair nor do i think that this court in any president has ever held that it is good williams the number the number of yours was not at the heart of the jury trial twelve but there was about the requirement that whatever the number is they all agree we respond justice ginsburg i think that it was not our historical accident i would disagree with that that description i think that these two things were married together in every description the number twelve and  every description have always hard to hard to say you disagree when williams described the number twelve as a historical so that they just say williams is wrong in that respect i think that characterization of it reliance briar you asked a couple of questions about numbers and facts so we say in our reply brief using one of the state's own filings that there are thirty six cases on direct review right now in louisiana where this issue has been presented and then even within those thirty six says even within that thirty six dollars you're going to have arguments about whether was adequately preserved all the rest and so we think at least in the director of you level the numbers are actually quite modest and as the court has  described throughout the last half of the argument the retroactivity questions can be left for another day and covered by their own reliance documents you also asked about puerto rico in footnote ten of our brief we note that the court held in balls act that the right to jury trial does not apply the same way in puerto rico as to the states and so that would be a question about the insular cases you're going to be talking about that next week perhaps but it's something that this case doesn't doesn't necessarily address so as to start to size in reliance let me make a couple points about the state's framing of its arguments and then talk about i think justice kagan your sort of alternative framing of the arguments as to the state's framing of the arguments i think it's helpful to remember why we have started to cite this in the st place it's about settled expectations in the law and what we're asking you today to do or to reaffirm two things the court has said many many times over the years one is the th amendment requires unanimous verdict and nd when an incorporated provision applies to the states it applies the same way as it does the federal government so to write that opinion all you have to do is  reaffirm what you said many many times and to the law it is the state's position that would create up he evil as to the law would raise questions like the one the chief justice asked about whether seventy five is ok the state not only doesn't answer the question it's brief it provides no way to no way to answer the question that would just be one of many questions that would arise if you agreed with the state's view so i think then you're left with the alternative argument that what about what about putting a reliance interest into apa docket itself i'm not sure by the way that oregon does that i think it's also telling that oregon is not willing to defend i know it doesn't go the other way like the state does but it certainly isn't willing to defend justice pauwels reasoning and apatow arca but let's imagine that argument were in front of a court i think there's three reasons why you would still over demand a unanimous verdict unanimous consent of a cross section of the community and that is important as the social science brief in this case shows for accuracy public confidence and all the rest and so those reliance interest was by the way the state itself is not unanimous verdict it maintains the ability under its law to try anyone going forward for a crime committed before january st twenty one thousand and ten to verdict and so that could go on for years and that ought to be taken into account secondly i think incorporation is just different i think that's the lesson of the sweep of this court's cases is reliance interests are less important when it comes to incorporation because the bill of rights themselves are so important when the court says something as a fundamental rule under our way of doing criminal justice the states have to follow that rule the same way as the federal government and then the last thing i think that makes this case different than an ordinary story decisis case is the vote in app a doc it's not just that it was a four hundred and fourteen vote but it's just that the other eight justices rejected the decisive reasoning in that case and i think that makes this almost a universe of one and if i could push it even further i would say that if you have any doubts look at justice pauwels reasoning justice powers reasoning  based on a refusal to follow precedent what he said was i'm agreeing with the past dissenters i know you have this rule from a lawyer against hogan from five years ago that requires the same standard to apply in federal court as they apply and in state court as they apply a federal court but i don't want to follow that rule he didn't even try to distinguish the court's old holding so in a sense affidavit itself was born of a disregard for story decisis and so if you feel that strongly about story decisive as a value this case is almost singular in its in its in the compelling reasons right now to to overrule happened since you mentioned balzac and i ask you a question about that so let's imagine this case is decided in your favor and then a defendant who's been convicted by a non unanimous jury verdict in puerto rico comes here and he says look i am a citizen of the united states and the only reason why i was able to be convicted by a non unanimous verdict is are these old insular cases i think i would i would say that would be different for all the reasons i just outlined the insular cases were majority decisions from the court they were they were based on a view that has not been disregarded or left behind in the courts jurisprudence there may be arguments parties can make under ordinary st assizes principles but the last point i would leave you with is this is not an ordinary star decisis case thank you console case is submitted