At Volokh Conspiracy, Josh Blackman: Justice Alito Calls To Reconsider Justice Scalia's Proudest Accomplishment. From the introduction:
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 Compulsory Process 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 the Compulsory 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 a semicolon have very different meanings.
Citing Scalia/Garner to show that Scalia was wrong? Shots fired.
And from later on:
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.
Posted at 6:26 AM