The Volokh Conspiracy
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Justices Alito and Gorsuch Would Like to Reconsider Crawford
Two decisions respecting a denial of certiorari suggest the Court should reconstruct Confrontation Clause jurisprudence.
The Supreme Court did not grant certiorari in any cases this morning, but Justices Alito and Gorsuch both suggested it may be time to grant a case to reconsider aspects of the Court's Confrontation Clause jurisprudence, Justice Scalia's opinion for a unanimous Court in Crawford v. Washington in particular.
Both Justices Alito and Gorsuch issued separate opinions respecting the denial of certiorari in Franklin v. New York.
From Justice Alito's opinion:
I agree that we should not grant certiorari in this case, but in an appropriate case we should reconsider the interpretation of the Confrontation Clause that the Court adopted in Crawford v. Washington, 541 U. S. 36 (2004), and has elaborated in later cases. Overturning established precedent, the Crawford Court claimed that its new interpretation captured the original meaning of the Confrontation Clause as revealed by then-recent scholarship, id., at 60–61, and that this interpretation would avoid the "unpredictable and inconsistent" results that had occurred under the test it overturned, id., at 66.
Subsequent developments have undermined these two pillars of Crawford's rationale. Historical research now calls into question Crawford's understanding of the relevant common law rules at the time of the adoption of the Sixth Amendment, and whatever else may be said about that decision, there can be no dispute that it has not produced predictable and consistent results. Despite repeated attempts to explain what Crawford meant by "testimonial statements," our Confrontation Clause jurisprudence continues to confound courts, attorneys, and commentators. . . .
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 in the 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. If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.
If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.
And from Justice Gorsuch's opinion:
It's hard to fault the Court of Appeals for applying a "primary-purpose" test in assessing Mr. Franklin's Sixth Amendment claim. After all, this Court endorsed the test just last year in Smith v. Arizona, 602 U. S. 779, 800 (2024).But even if that judge-made test may have some useful role to play, it seems to me that treating it as a necessary condition to relief under the Confrontation Clause can pose problems too, risking results that sit uneasily with the Clause's original meaning. It is a concern I raised in Smith—and one that, to my eyes, this case highlights. Id., at 806 (opinion concurring in part). . . .
To my mind, all this suggests we may need to rethink our course sometime soon. The primary-purpose test came about accidentally. It has caused considerable confusion. This Court has never sought to justify it on the basis of the Sixth Amendment's text or original meaning. Nor, for that matter, is it easy to see how one might. The Sixth Amendment guarantees "the accused . . . the right . . . to be confronted with the witnesses against him." What matters, as I read those words, is not the purpose for which an out-of court statement was originally created, but whether the government seeks to use a witness's statement at trial against a defendant in lieu of live testimony. See Smith, 602 U. S., at 806–807 (GORSUCH, J., concurring in part).
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). Perhaps we should consider doing the same here. As we recognized in Crawford, the Sixth Amendment enshrined a pre-existing right to confront one's accusers at trial, and its broad language "admit[s] only those exceptions established at the time of the founding." 541 U. S., at 54. In other words, the Amendment established a presumption that prosecutors cannotuse out-of-court statements against a defendant without an opportunity for cross-examination, a presumption prosecutors can overcome only by identifying some historically recognized exception to the general rule. Following that approach might sometimes present courts and counsel withdifficult questions, but perhaps no more so than those theyface today under the primary-purpose regime. And, in anyevent, it is hard to see how else we might proceed if our aim is "to honor the supreme law the people have ordained rather than substituting our will for theirs." United States v. Rahimi, 602 U. S. 680, 711 (2024) (GORSUCH, J., concurring); see Crawford, 541 U. S., at 67.
Now may not be the moment, I concede, for the Court to take up these questions. The Court issued its latest word on the Confrontation Clause in Smith less than a year ago. Before weighing in again, we may benefit from the insights and further experience of our lower court colleagues. Along the way, I hope only that they pause to consider the complications surrounding the primary-purpose test and address possible alternatives we might consider. As Chief Justice Marshall observed, all of us who serve in the judiciary are charged with being "watchful of every inroad" on the rights the Confrontation Clause protects. United States v. Burr, 25 F. Cas. 187, 193 (No. 14,694) (CC Va. 1807)
