Justice Alito Calls To Reconsider Justice Scalia’s Proudest Accomplishment

In the summer of 2008 when I was a rising 3L, I attended an event on Justice Scalia’s book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

Or did he?

On Monday, the Court denied cert in Franklin v. New York, a Confrontation Clause case. Justices Alito and Gorsuch wrote statements regarding the denial of certiorari. Alito’s statement calls into question Scalia’s originalist magnum opus.

Alito explains that the meaning of “witness” in the Confrontation Clause is at odds with the meaning of “witness” in the Confrontation Clause:

In order to reach this conclusion, the Court was required to hold that any person who makes a “testimonial” statement (whatever that means) is a “witness” within the meaning of the Confrontation Clause, but this gave the term “witness” a meaning that is radically different from its meaning in the neighboring Compulsory Process Clause and elsewhere in the Constitution . . . After Crawford, however, only theCompulsory Process Clause’s “witnesses” are people who must appear in court and take the stand. When a law uses the same term more than once, we presume that the termmeans the same thing every time it is used. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012). Thus, it is startling to hold that the term”witnesses” in two provisions separated by nothing but asemicolon have very different meanings.

Citing Scalia/Garner to show that Scalia was wrong? Shots fired.

I have written that Justice Scalia’s Heller decision failed to account for certain linguistic sources that can now be found in COFEA, but were not available in 2008. It is tough to fault Scalia for not relying on technology that did not yet exist. But this sort of textual evidence about the Sixth Amendment was available in 2006. Justice Alito makes this point:

These powerful textual arguments were known when Crawford was decided, but the Court dismissed them because its study of history led it to believe that the Confrontation Clause was meant to codify a well-established common law right against the introduction of a certain category of what we now call hearsay. More recent scholarship, however, casts doubt on key aspects of Crawford’s reasoning.

Alito then cites a slew of law review articles that criticized Crawford.

Alito does not think that every originalist decision ought to be reconsidered when new originalist scholarship is brought forward. But he thinks that step is warranted here, especially where the testimonial/non-testimonial line has proven so unworkable.

Our body of constitutional decisions would be in perpetual turmoil if we reconsidered every decision resting on an interpretation of history that is subsequently challenged inthe law reviews. But as both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.

In my view, the problem with Crawford resembles the problem with Heller. In both cases, there was an originalist basis for the constitutional right. But in both cases, originalism did not provide a clear way to apply those rights to present-day circumstances. This is the well-known problem of constitutional construction. In Heller, Justice Scalia advanced a  framework about arms in “common use,” “dangerous and unusual weapons,” “sensitive places,” and so on. (These locutions were likely needed to hold five votes.) None of this came from originalism, and called for ad hoc judicial balancing tests. In many regards, Justice Breyer’s Heller dissent proved more useful than Justice Scalia’s majority opinion.

The Crawford test followed a similar path. The Court had to offer some test to determine whether a witness had to testify in person. So Scalia offered the distinction between “testimonial” and “non-testimonial” evidence. But this line was apparently invented by the Court, and as not grounded in history.

Bruen favored a “text and history” approach to the Second Amendment. Justice Gorsuch hints that a similar framework may be warranted for the Confrontation Clause:

When it comes to vindicating many other guarantees in the Bill of Rights, we have eschewed “ambitious, abstract, and ahistorical” tests in favor of ones grounded in the constitutional text and the common law that informed it. Kennedy, 597 U. S., at 534 (internal quotation marks and alteration omitted) (Establishment Clause). [FN1] Perhaps we should consider doing the same here.

[FN1] See also, e.g., SEC v. Jarkesy, 603 U. S. 109 (2024) (Seventh Amendment); Ramos v. Louisiana, 590 U. S. 83 (2020) (Sixth Amendment jury right); Knick v. Township of Scott, 588 U. S. 180 (2019) (Fifth Amendment Takings Clause); Currier v. Virginia, 585 U. S. 493 (2018) (Fifth Amendment Double Jeopardy Clause); District of Columbia v. Heller, 554 U. S. 570 (2008) (Second Amendment); United States v. Bajakajian, 524 U. S. 321 (1998) (Eighth Amendment Excessive Fines Clause); cf. Carpenter v. United States, 585 U. S. 296, 397–404 (2018) (GORSUCH, J., dissenting) (urging a similar approach for the Fourth Amendment).

Perhaps the most likely consequence of Alito’s statement is that critics of originalism will be emboldened. See, they will say, even if Justice Scalia’s masterpiece of originalism is criticized by Justice Alito, that means that all originalism is bunk! This issue must have been really significant to Justice Alito, if he was willing to throw Justice Scalia’s legacy, and originalism itself, under the bus. As best as I can tell, Alito dissented in leading Confrontation Clauses, including Bullcoming v. New Mexico (2011) and Melendez-Diaz v. Massachusetts (2009). Alito’s statement has been a long-time coming.