The Supreme Court’s decision this week requiring that only unanimous juries may bring in a conviction of a serious crime rests uneasily with The New York Sun. It’s not that the court overturned a precedent that has stood for close to 50 years, though Justice Alito wrote a brilliant dissent* on this head. Nor is it the particulars of the conviction that was just overturned. We wonder, though, what Antonin Scalia might have done. And herein lies our story.

The case involves Evangelisto Ramos, who in 2016 was convicted in Louisiana of murder. The jury vote was ten to two. Mr. Ramos appealed, arguing that the law allowing non-unanimous jury convictions was a product of Jim Crow. Justice Gorsuch, writing for a majority of the court, credited this argument. It’s “hard to say” why Louisiana’s law (and a similar one in Oregon) persist, he reckoned, but their origins are clear.

We ourselves want no part of Jim Crow or any of his relatives. That doesn’t mean, though, that all laws allowing a conviction by non-unanimous juries are racist. It happens, moreover, that when it comes to capital crimes, the sages of the Great Sanhedrin refused to convict when the rabbis were unanimous. They feared that a unanimous jury might be the product of an inadequate defense.

This makes its appearance in the Talmud in Tractate Sanhedrin, 17a. It records one of the sages, Rav Kahana, as saying: “In a Sanhedrin where all the judges saw fit to convict the defendant in a case of capital law, they acquit him.” The rule seems related to the requirement that the judges had to wait a night before making a final ruling. If all are for a guilty verdict on the eve, the sages fretted, which one would argue for the accused come morning?

We wonder whether such punctiliousness could have been one of the reasons that non-unanimous juries eddy in and out of our own history, which has been so illuminated by the Light of Sinai. We may be a secular republic, but a bas relief of Moses — who, after all, brought the law down from Sinai — is embedded in the walls of our Congress and our highest court. Maybe it’s short-sighted to prohibit non-unanimous verdicts.

Which brings us to Justice Scalia. He was the guest in 2008 at a sitting of the editorial board of the Sun. It was a memorably warm and voluble evening. When the discussion turned to juries, we mentioned the rule of the Great Sanhedrin. The Great Scalia lit up like a Christmas tree. It was a joy to listen to him react to this counterintuitive instinct of Torah sages adjudicating the laws of God.

A few months later, we received a rocket from the Sun’s erstwhile Supreme Court reporter, Joseph Goldstein, alerting us to a comment Scalia had just made from the bench in a voting rights case. When it was pointed out that the Senate had voted unanimously, Scalia had piped up to say that the “Sanhedrin” had “a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

It’s not our intention to make too much of this. The main interest in the case so far seems to be the maneuvering it discloses over when a court should go ahead and overturn a precedent. What we see, though, is a slight dimming of the Light of Sinai. The rabbis of the Sanhedrin grasped that unanimity isn’t necessarily a virtue. Dissent isn’t always a problem. We’d like to think that Scalia, so alive to the religious sages, would have pressed that point.

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* For Chief Justice Roberts and Justice Kagan, as well as himself. Ironically, the Supreme Court barred non-unanimous guilty verdicts in respect of serious crime in a ruling that itself was not unanimous but divided the court six to three.

Drawing by Elliott Banfield, courtesy of the artist.