Ballew v. Georgia

Ballew represented a rare instance of agreement among the nine justices on the Supreme Court, four of whom filed concurring opinions. Justice Stevens joined the Court's opinion, he said, though apparently for different reasons: "I have not altered the views I expressed in Marks v. United States," he wrote, referring to a case concerned with pornography and not jury-trial issues. Justice White wrote that a jury of fewer than six members would fail to satisfy the "cross-section requirement" of the Sixth and Fourteenth Amendments, because it would not properly represent the community. Justice Brennan, joined by Justices Stewart and Marshall, agreed with the Court but held that Ballew should not be subjected to a new trial since in his view the Georgia statute was "overbroad and therefore facially unconstitutional."

Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, agreed with Justice Blackmun that "the line between five and six-member juries is difficult to justify." But, he wrote, "a line has to be drawn somewhere if the substance of jury trial is to be preserved." He expressed differences with Blackmun over issues raised in Apodaca v. Oregon (1972), a case concerned with jury unanimity. Then he came to the apparent heart of his disagreement with Blackmun, which related to methods--specifically, his colleague's "heavy reliance on numerology derived from statistical studies"--rather than results. Not only did he consider the social-science approach unnecessary, Justice Powell questioned its wisdom and further expressed concern over the fact that the data could not be subjected to the "traditional testing mechanisms" applied to constitutional, statutory, or legal material.