In the 1946 case of Fay v. New York, the U.S Supreme Court upheld a New York state law that allowed for non-unanimous jury verdicts in criminal cases. The plaintiff, Francis Fay, had been convicted by a five-sixths majority vote from a jury on charges related to illegal gambling operations and argued that this violated his constitutional rights to due process and equal protection under the Fourteenth Amendment. However, the court ruled against him in an 8-1 decision stating that there was no constitutional requirement for unanimous juries at either federal or state level unless specifically stated otherwise within individual states' constitutions. This ruling affirmed states' rights to determine their own requirements regarding unanimity in jury decisions.

In the dissenting opinion for Fay v. New York, Justice Wiley Rutledge argued that the use of a special jury in criminal cases, selected based on their ability to understand complex evidence and issues, was unconstitutional. He believed it violated both equal protection under law and trial by an impartial jury as guaranteed by the 6th Amendment. According to him, this system allowed for discrimination against those with less education or intelligence and could lead to bias in favor of wealthier defendants who can afford more sophisticated defenses. Furthermore, he contended that such juries were not truly representative of a cross-section of society which is essential for ensuring fairness in trials.