Justices Alito and Gorsuch Would Like to Reconsider Crawford
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
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