Ballew v Georgia
435 US 223 (1978)
Conference (Notes of Brennan)

BURGER:  The figure of five versus six doesn't bother me--I can't see how there is a constitutional issue.

STEWART:  I reverse on any of four issues:  (1) the use of a five man jury; (2) the use of a five man jury in obscenity cases; (3) the injunction; and (4) vel non obscenity to consenting adults.

WHITE:   I reverse on the five man jury--even across the board, but at least in obscenity cases.  We ought not go below six in criminal cases generally.

MARSHALL:  I would reverse on the jury instructions.

BLACKMUN:  I can't see why Williams wouldn't support five as well as six.

POWELL:  I thought that Williams might be controlling--yet five is too small.  Six should be the minimum where a jury is required.  I also thought that the instructions were hard to defend, but we need not reach that.

REHNQUIST:  I don't distinguish from obscenity cases.  Juries below six and down to five seem O.K. to me, yet I might join an opinion saying that six is the minimum in any criminal case.

STEVENS:  I would decide only the six-man jury question and say that six is the minimum.

BURGER:  I change my vote to reverse on the five-man jury.  Five is constitutionally inadequate.

BLACKMUN:  I change my vote to go along with six as the minimum.