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.