In the 1901 case of Nesbitt v. United States, the Supreme Court ruled on a matter concerning jury selection. The defendant, Nesbitt, was convicted for murder in Alaska and appealed his conviction to the Supreme Court arguing that he had been denied a fair trial because women were excluded from serving on juries in Alaska at that time. He claimed this exclusion violated his rights under both federal law and the U.S Constitution's Sixth Amendment which guarantees an impartial jury trial in criminal prosecutions. However, Justice John Marshall Harlan delivered the unanimous opinion of the court rejecting these arguments stating there was no constitutional requirement for juries to be composed of both men and women or any particular class or classes of citizens; rather it is sufficient if they are made up from among those who may legally be summoned for such service according to laws enacted by Congress.

In the dissenting opinion for NESBITT v. UNITED STATES, Justice Harlan argued that the defendants' constitutional rights were violated because they did not have an opportunity to cross-examine a key witness against them. The prosecution had used testimony from a previous trial in which this witness testified but was now deceased. According to Harlan, using such testimony denied the defendants their Sixth Amendment right "to be confronted with the witnesses against him." He believed that this principle is so fundamental to American justice that it should apply even if there are practical reasons for making exceptions (such as when a witness has died). Therefore, he disagreed with the majority's decision upholding the convictions and would have reversed them.