In their dissents from an order denying cert, two justices leave a trail of breadcrumbs for litigators frustrated by the discordant state of the law with respect to the Constitution’s Confrontation Clause.
As we saw last month, in a written order that seemingly invited litigation as to whether warrantless misdemeanor arrests are permitted under the US Constitution, the justices often use their dissents from orders denying certiorari to air their thoughts about the state of the law and to seemingly invite future litigation on topics they deem as having special importance.
On that note, SCOTUS’s latest order list is something of a doozy, as we have two “conservative” justices–including Alito, a textualist once considered Justice Antonin Scalia’s philosophical heir–calling out one of the major achievements of Justice’s Scalia’s tenure, the reinvigorated Confrontation Clause.
First off, Justice Alito’s dissent will be potentially shocking to those who have followed the saga of the reinvigorated Confrontation Clause since Scalia authored the majority decision in Crawford v. Washington roughly two decades ago. While that decision kicked off major substantive changes in this area of criminal law, Alito uses his dissent, interestingly, to admit that this project may have been faulty from the start. Alito claims that new “historical research” has undermined Crawford’s originalist logic and, more problematically, that the holding of Crawford is textually inconsistent with other closely-related passages in the Constitution. To Justice Alito, “the real problem may be Crawford itself and its conclusion that the Confrontation Clause codified a well-established common law right against the use of any ‘testimonial’ statement made out of court by a person who is available to testify and was not previously subject to cross-examination by the defendant.” While developments in historical legal scholarship may not independently justify reconsideration of this important line of case law, Justice Alito further points out that “the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.” Accordingly, Justice Alito urges his colleagues to revisit the issue in a future case and to potentially rethink Crawford itself.
Meanwhile, Justice Gorsuch, who also files a separate dissent, agrees with Justice Alito that the Confrontation Clause jurisprudence has failed to clarify workable rules for litigants, although he does not go as far as Justice Alito in his critique. Instead, he focuses on the “primary purpose test,” a legal standard that he views as atextual and subject to a number of incompatible definitions issued by SCOTUS in the intervening 20 years. Accordingly, he invites future litigation on this topic in the hopes that, perhaps one day, a workable and unified theory can be produced.
Taken together, while both dissents critique the current state of the law, they offer ammunition to different actors. As many criminal defense attorneys know, the Confrontation Clause has been a useful tool, as it can be invoked to create difficult evidentiary hurdles for state actors. Justice Alito’s invitation to potentially scrap the entire Crawford analysis may therefore prove irresistible for state actors who have been frustrated by its demands, especially in cases involving forensic evidence. However, Justice Gorsuch’s decision highlights an aspect of the post-Crawford case law which has equally bedeviled defense litigators, the flexible “primary purpose” test which often shields at least some statements that feel “testimonial” from being subject to Crawford‘s strict demands. (As, for example, in SCOW’s Mattox decision, cited in this dissent.) Given these two dissents, we are certainly interested to see where things go from here!
