What happened
The U.S. Supreme Court declined to take up a challenge to a precedent that keeps the Seventh Amendment's civil jury trial right from applying against the states, but Justice Neil Gorsuch said the old rule “warrants a second look.”
In a statement respecting the denial of certiorari, Gorsuch agreed the case was not the right vehicle because of problems identified in the opposition brief. But he used the denial to question Minneapolis & St. Louis Railroad Co. v. Bombolis, the 1916 decision holding that the Seventh Amendment's civil jury trial guarantee is not enforceable against the states.
Gorsuch described Bombolis as a relic of an earlier constitutional era, noting that the court in that case dismissed as strange the idea that the Seventh Amendment — or any of the Bill of Rights — might apply to the states. The court's modern incorporation doctrine, he said, has shed that reluctance and now applies many Bill of Rights protections to state governments through the Fourteenth Amendment.
The justice said it is hard to see why the civil jury trial right should be treated differently. He pointed to the court's contemporary recognition that states must respect rights including the First Amendment's establishment clause, the Second Amendment right to bear arms, Fifth Amendment protections against self-incrimination and takings, and the Eighth Amendment's excessive fines clause.
Gorsuch also tied the issue to current enforcement practice. He said Bombolis leaves ordinary Americans in a two-tiered system: federal civil-penalty actions may require a jury under the Seventh Amendment, while state and local agencies pursuing similar relief may claim they can proceed without one.
The denial leaves Bombolis in place and does not change binding law. But Gorsuch's statement marks a clear invitation for a cleaner case, concluding that the court should confront Bombolis' Seventh Amendment holding soon.