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Justice Thomas Declines To Extend Non-Originalist Confrontation Clause Precedent

Don't act surprised when Thomas narrowly reads made-up Brennan decision from 1968 that itself reversed precedent.

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When I was a 2L, 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.

Great success! But not all facets of the Court's Confrontation Clause jurisprudence are premised on originalism. Case in point, Bruton v. United States (1968). This decision concerned a joint trial of two defendants. Defendant #1 had confessed, and implicated Defendant #2. A postal inspector testified about that oral confession by Defendant #1, which included the statement that implicated Defendant #2. The trial judge ruled that the testimony could be used to support Defendant #1's guilt, but instructed the jury that the testimony was inadmissible hearsay with regard to Defendant #2.

A prior decision of the Court, Delli Paoli v. United States (1957), held that the trial judge's limiting instruction was permissible. But on appeal, Bruton held that the limiting instruction was insufficient, and thus the introduction of the testimony violated the Confrontation Clause. Justice Brennan wrote the majority opinion. You can predict what happened. The Court reversed Delli Paoli without any discussion of stare decisis or precedent. Zero. And there is also no discussion at all about why the original meaning of the Sixth Amendment supports that result. Justice Brennan doesn't even bother quoting the text of the Confrontation Clause. The entire decision was premised on the risk that the jury would disregard the instruction, because of fairness concerns. That's how the Court rolled in 1968, which was probably the apogee (nadir) of the Warren Court's activism.

Fast-forward to the present-day, and Samia v. United States. In this case, Samia and his accomplices were tried jointly. One of the accomplices had confessed, and implicated Samia. The prosecutors introduced that confession. But to avoid running afoul of Burton, the witness substituted Samia's name for the phrase "other person." As a result, Samia was never directly implicated. And the trial court judge instructed the jury to not use that confession with regard to Samia. On appeal, the defendant asked the Supreme Court to extend the line of cases that began with Bruton, and reject the "other person" workaround.

By a 6-3 vote, the Supreme Court declined that invitation. Justice Thomas wrote the majority opinion, but you should start with Justice Barrett's short, but pointed concurrence. Barrett explains that the majority opinion relies on old-timey precedents from the "late 19th century and early 20th centuries" that "address the rules of evidence rather than the Confrontation Clause." Unlike in Crawford, there is virtually nothing in Samia that speaks to the original meaning of the Confrontation Clause, as understood in 1791. Barrett explains that the Court should emphasize history that does not bear on the original meaning of the Constitution:

For whatever reason (the parties only speculate),there appears to be little founding-era evidence illustrating how courts handled the admission of a codefendant's confession. So why not simply say that the history is inconclusive? . . .

At best, the evidence recounted in Part II–A shows that, during a narrow historical period, some courts assumed and others expressly held that a limiting instruction sufficiently protected a codefendant from a declaration inadmissible on hearsay grounds. In suggesting anything more, the Court overclaims. That is unfortunate. While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.

Barrett's counsel seems prudent. Why discuss history that has no bearing on the constitutional question? The simpler originalist answer is that if there is no historical basis to establish a constitutional right, the purported right does not exist. See Dobbs. In other words, unless the original meaning supports the challenger, the government should prevail. Of course, this approach to originalism rejects what may be called a presumption of liberty, and favors a presumption of constitutionality.

Justice Barrett is giving serious thought to the proper burdens of proof in originalist cases. I think the standard she imposed on the lawyers in Brackeen was too stringent, and was inconsistent with landmark cases like Lopez. (Will Foster made a similar point at the Originalism Blog.) Still, at least she is pondering these questions. I would hope the other Justices consider these deeper issues, rather than just cite history willy-nilly and call it originalism.

If the majority did not rely on history, what was motivating Justice Thomas and company? Justice Kagan, in dissent, suggests that the historical discussion was simply a way to evade Bruton. She repeats at several junctures that the Court did not give due deference to Justice Brennan:

That analysis altogether fails to capture what our Bruton cases care about. . . .

But that distinction makes nonsense of the Bruton rule. . . .

So the majority warps our Bruton precedent by categorically putting the two on opposite sides of the constitutional line.

The facts here are different than the facts in Bruton. That's why Kagan has to refer to some broader Bruton gestalt. To be precise, the Court was not willing to extend that gestalt. Here, Justice Kagan mostly-diagnoses the problem:

And the majority does no better in invoking "historical evidentiary practice." See ante, at 6–8. One point here is JUSTICE BARRETT's: There just isn't much history helping the majority. See ante, at 1–3 (opinion concurring in part and concurring in judgment). But assume for a moment to the contrary: Suppose with the majority that at some relevant time, courts conducting joint trials admitted un redacted co-defendant confessions subject only to limiting instructions. Ante, at 6–8. If that history controlled, Bruton itself would have been wrongly decided. The majority's real views thus come into focus. The point of its opinion is not to distinguish the confession here from the one in Bruton. The point is to say why Bruton should go. . .  And so one might wonder after reading today's decision whether Bruton is the next precedent on this Court's chopping block.

There's that "chopping block" again. She used that same phrase in Collins v. Yellen:

The SSA has a single head with for-cause removal protection; so a betting person might wager that the agency's removal provision is next on the chopping block.

That would have been a good bet! Is Kagan signaling that Grutter and Bakke are on the block? I'm doubtful.

In Samia, Justice Thomas, at least implicitly, followed his framework from Garza v. Idaho. He saw Bruton, a decision that had no support in the original meaning of the Constitution, limited the precedent to its facts, and declined to extend it to a new scenario. In other words, "this far, but no farther." This framework is appropriate for lower-court originalists, but works even better for Supreme Court originalists.

But Justice Thomas does not explain any of these moves. He simply finds the facts in this case distinguishable. Here is the key passage:

Here, the District Court's admission of Stillwell's confession, accompanied by a limiting instruction, did not run afoul of this Court's precedents. Stillwell's confession was redacted to avoid naming Samia, satisfying Bruton's rule. . .  . Accordingly, it "fall[s] outside the narrow exception [Bruton] created." Richardson.

Justice Thomas does not acknowledge the non-existent originalist foundation for Bruton. And Justice Thomas didn't explain how there is no historical support for the extension of that rule. Instead, he tried to parse some old precedents that, as Justice Barrett explains, were about the rules of evidence and not the Sixth Amendment.

In defense of Justice Thomas, I doubt an opinion repudiating a precedent that no one challenged would have garnered two votes, let alone five. So to keep the Court, he wrote a concise opinion that parsed precedent. I much prefer Thomas concurrences and dissents to majority opinions. It's still a miracle he held Bruen together. But in the end, as Justice Barrett recognizes, Samia brings the Court's Confrontation Clause jurisprudence back to its historical roots. The gravitational force of the Constitution continues to tug. Maybe in some future case, Bruton itself can be reconsidered. I am generally of the mind that any Brennan decision that overruled precedent without regard to stare decisis, should itself be overruled without stare decisis.