UPDATED: New material added to 11:29 a.m.  (See Erin’s post below for documents.)

The Supreme Court ruled for the first time on Tuesday that the process of selecting a jury to try a criminal case must generally be open to the public, under the Constitution’s Sixth Amendment guarantee of a public trial.   While the Court had ruled in 1984 that the questioning of potential jurors must be open under the First Amendment, when the public or press seeks access, it had not extended that right to the Sixth Amendment when the accused seeks openness of that stage of the proceedings.

“There is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has,” the Court said.

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The ruling, issued without formal briefing and oral argument, was decided by a 7-2 vote in Presley v. Georgia (09-5270).  The majority opinion was not signed.   Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented.

In another part of the summary ruling, the Court repeated its earlier requirement that, before closing a courtroom, the trial judge must consider alternatives.  That obligation, the Court stressed, exists whether or not the defense lawyer suggests alternatives.   “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials,” the opinion said.

The dissenters protested that the Court had settled, in a summary ruling, two “important questions” that have not been answered in earlier cases: whether the public trial right extends to jury selection, and whether the defense was required to come forward with alternatives to closing the trial.  The new ruling, Justice Thomas wrote, “belittles the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today.”

The Court, in a second summary ruling on Tuesday, engaged in a spirited debate — with a 5-4 result — over when the Court should wipe out a lower court’s ruling and order it to reconsider.  The case involved a Georgia murder case — a case in which, the Court majority said, there was a trial that “looked typical,” but “there were unusual events going on behind the scenes.”  The Court cited private contacts between the jurors and the trial judge, and noted that, during the trial,. “some members of the jury gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.”  None of this, the Court said, had been reported by the judge to defense lawyers representing Marcus Wellons on the trial for a 1989 murder.

The decision ordered the Eleventh Circuit Court to reconsider the case, applying the Court’s decision last year in Cone v. Bell (a decision that federal habeas review of a criminal conviction is not barred when a state court had declined to review the merits of a case on the ground that it had done so previously).

The majority opinion was unsigned.  It presumably was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sonia Sotomayor, and John Paul Stevens.  There were two dissenting opinions: by Justice Scalia, joined by Justice Thomas, and by Justice Samuel A. Alito, Jr., joined by Chief Justice John G. Roberts, Jr.  The case is Wellons v. Hall (09-5731).

Posted in Merits Cases