These are the twisted questions that a group of constitutional law professors come up with over dinner.

In the case of Georgia v. Brailsford (1794), Chief Justice John Jay actually presided over a jury trial at the Supreme Court. The case was brought against by the state of Georgia in its original jurisdiction. The opinion begins, “This cause was now tried, by a special jury.” Justice Douglas referenced this fact in his dissent in Mississippi v. Arkansas, observing “In Georgia v. Brailsford, 3 Dall. 1, 1 L.Ed. 483, the Court in a case under the head of its original jurisdiction impaneled a jury. And that procedure, though soon abandoned, was followed in a few other cases: See 1 H. Carson, History of the United States Supreme Court 169 n. 1 (1902).” Apparently the Supreme Court held two other jury trials.

Today, nearly all of the original jurisdiction cases are brought when one state sues another. And in all cases, the Court appoints a special master to gather facts. But, like a magistrate, a special master could not preside over jury selection and voir dire. So what would happen if a party in an original jurisdiction case demanded a jury trial. Would the 7th Amendment apply?

If the amount in controversy exceeded $20, and it was a suit at common law, I argue yes. Would the breach of an interstate compact be at common law? This one is tougher. I don’t know the answer, as this may be a violation of federal common law.

But what if an Ambassador suffered a tort, or had a breach of contract action, and brought suit in the original jurisdiction of the Supreme Court? Could he demand a jury trial? I think yes.

An even better question. Who would hear an appeal if there are any challenges to the jury selection process? Certainly the Court could not sit in judgment of its own decisions.

And what about a criminal case? What if the United States brought a criminal action against an Ambassador in the Supreme Court’s original jurisdiction? (Or even better, what if the United States brought a suit against an Ambassador in a district court and he insisted that the Supreme Court hear it!?) How would the vicinage clause apply? Would you take jurors from the locus of the case? Or from D.C.? Either way I think you have a vicinage clause problem.

I think we need a test case for this. I would LOVE to see Chief Justice Roberts presiding at voir dire.

Thanks to Allan Erbsen for helping me think this through. See also a helpful article by Anne-Marie C. Carstens titled Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases in the Minnesota Law Review.

Update: Lochlan Shelfer wrote a note directly on point in the Yale Law Journal, titled “Special Juries in the Supreme Court.” Here is the abstract:

The Seventh Amendment mandates juries in federal courts for cases that would have required them at common law. Yet the nation’s highest federal court has presided over a jury trial in only one reported case, Georgia v. Brailsford (1794). The prospect of a jury trial in the Supreme Court makes the case intriguing enough. Brailsford, however, is even more well-known for its provocative language on the jury’s power to decide the law as well as the facts. Nevertheless, the trial remains largely unstudied. This Note examines the case’s extant documents and argues that the jury the Supreme Court used was a special jury of merchants in the tradition of Lord Mansfield. This conclusion offers insights into how the Supreme Court might negotiate a jury trial in a future case if the Seventh Amendment should demand it. Further, this Note’s finding provides a context to understand better Chief Justice Jay’s words on the jury’s authority to determine the law as well as the facts.

The note identifies several possible original jurisdiction suits:

Thus, there may be a case at law in the future that requires the Court to convene a jury, especially considering the possibly circumscribed status of the Court’s power to decline to hear cases that fall within its exclusive original jurisdiction when no alternative forum is available.199 It may be a case between states, or when one party is an ambassador, or when a state sues an out-of-state individual. At some point the Court may even be amenable to or desirous of hearing an issue of great importance in its original jurisdiction, perhaps for expediency purposes. Indeed, the Court has reached out to exercise its original jurisdiction in a number of high-profile cases in the past.

Excellent note. Well worth reading!