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
Article from Reason.com
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