When I was in 2L, I attended an event about Judge Scalia’s book, make your case. During the Q&A session, someone asked Judge Scalia which opinion he was most proud of. Without hesitation he said Crawford vs Washington (2004). This historic decision applied an original framework to the confrontation clause. Before that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard for determining whether out-of-court testimony could be tendered. But in CrawfordJustice Scalia went back in time to the deep historical roots of the right to confrontation.
Big success! But not all facets of the Court’s case law on the confrontation clause are based on originalism. Concrete example, Bruton v. United States (1968). This decision concerned a joint trial of two defendants. Accused #1 had confessed and implicated Accused #2. A postal inspector testified about this oral confession of Accused #1, which included the statement implicating Accused #2. The trial judge ruled that the testimony could be used to support the guilt of the 1, but told the jury that the testimony was inadmissible hearsay with respect to Defendant 2.
A preliminary decision of the Court, Delli Paoli c. UNITED STATES (1957), held that the trial judge’s limiting instruction was acceptable. But on appeal, Bruton found that the limiting instruction was insufficient and that the introduction of the testimony therefore violated the confrontation clause. Justice Brennan wrote the majority opinion. You can predict what happened. The Court overturned Delli Paoli without any discussion of stare decisis or precedent. Zero. And there is also no discussion at all of why the original meaning of the Sixth Amendment supports this outcome. Judge Brennan does not even bother to quote the text of the confrontation clause. The whole decision was based on the risk that the jury would disregard the instruction, for reasons of fairness. This is how the Court rolled in 1968, which was probably the peak (nadir) of Warren Court activism.
Fast forward to the present day, and Sami c. UNITED STATES. In this case, Samia and her accomplices were judged jointly. One of the accomplices had confessed and implicated Samia. Prosecutors presented this confession. But to avoid colliding with Burton, the witness substituted the name of Samia for the expression “other person”. As a result, Samia has never been directly implied. And the trial court judge ordered the jury not to use that confession with respect to Samia. On appeal, the defendant asked the Supreme Court to extend the series of cases beginning with Brutonand reject the “other person” workaround.
By a vote of 6 to 3, the Supreme Court declined this invitation. Judge Thomas wrote the majority opinion, but you should start with Judge Barrett’s brief but pointed agreement. Barrett explains that the majority opinion relies on ancient precedents from the “late 19th century and early 20th century” which “deal with the rules of evidence rather than the confrontation clause”. Contrary to Crawfordthere is almost nothing in Sami this reflects the original meaning of the Confrontation Clause as it was understood in 1791. Barrett explains that the Court should emphasize history that does not address the original meaning of the Constitution:
For some reason (the parties are only speculating), there appears to be little evidence from the founding era illustrating how the courts handled the admission of a co-defendant’s confession. So why not just say the story is inconclusive? . . .
At best, the evidence recounted in Part II-A shows that, for a short historical period, some courts assumed and others expressly held that a limiting statement sufficiently shielded a co-defendant from a finding of cause to dismiss. hearsay. By suggesting anything more, the Court on request. It is sad. Although history is often important and sometimes defining, we should be discriminatory in its use. Otherwise, we risk undermine the strength of historical arguments when they matter most.
Barrett’s attorney seems cautious. Why discuss history that has nothing to do with the constitutional question? The simpler originalist answer is that if there is no historical basis for establishing a constitutional right, the so-called 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 might be called a presumption of freedom, and favors a presumption of constitutionality.
Judge Barrett thinks seriously about the appropriate burden of proof in originalistic cases. I think the standard she set for lawyers in Fern was too strict and was inconsistent with landmark cases like Lopez. (will favor made a similar point on the Originalism blog.) Still, at least she is thinking about these questions. I hope the other judges will look at these deeper issues, rather than just quoting history willy-nilly and calling it originality.
If the majority did not rely on history, what was motivating Judge Thomas and company? Judge Kagan, dissenting, suggests historical discussion was just a way to sidestep Bruton. She repeats several times that the Court did not grant due deference to Justice Brennan:
This analysis completely fails to capture what our Bruton cases care. . . .
But this distinction makes absurd the Bruton rule. . . .
So the majority distorts our Bruton precedent by categorically putting the two on opposite sides of the constitutional line.
The facts here are different from the facts in Bruton. This is why Kagan must refer to broader terms Bruton Gestalt. To be precise, the Court was unwilling to extend this gestalt. Here, Judge Kagan primarily diagnoses the problem:
And the majority does not do better by invoking “the historical practice of proof”. See ante, at 6–8. A point here is that of JUSTICE BARRETT: There’s just not a whole lot of history helping the majority. See ante, at points 1 to 3 (concurring opinion in part and concurring in the judgment). But suppose for a moment the opposite: suppose with the majority that at some point the courts conducting joint trials admitted unredacted confessions by the co-defendant subject only to restrictive instructions. Ante, at 6–8. If this history controlled, Bruton itself would have been badly decided. The real opinions of the majority are thus brought into focus. The object of his opinion is not to distinguish here the confession from that of Bruton. The aim is to say why Bruton should leave. . . And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block.
There is still this “log”. She used the same phrase in Collins vs Yellen:
The SSA has a single head with protection against removal for cause; thus, a bettor could bet that the agency suppression provision is next on the chopping block.
That would have been a good bet! Does Kagan report that grutter And Bakke are on the block? I am doubtful.
In SamiJudge Thomas, at least implicitly, followed his framework of Garza vs. Idaho. He saw Bruton, a decision that had no support in the original meaning of the Constitution, limited the precedent to its facts and refused to extend it to a new scenario. In other words, “so far, but no further”. This frame is suitable for lower court originalistsbut works even better for Supreme Court originalists.
But Judge Thomas does not explain any of these movements. He simply finds the facts here distinguishable. Here is the key passage:
Here, the district court’s admission of Stillwell’s confession, accompanied by a limiting instruction, did not violate the precedents of this Court. Stillwell’s confession was redacted to avoid naming Samia, satisfying Bruton’s rule. . . . As a result, it “does not fall within the strict exception (Bruton) created.” Richardson.
Judge Thomas does not recognize the non-existent original foundation of Bruton. And Judge Thomas did not explain how there is no historical support for extending this rule. Instead, he tried to analyze some old precedents which, as Judge Barrett explained, were about the rules of evidence and not the Sixth Amendment.
To the defense of Judge Thomas, I doubt that an opinion repudiating a precedent that no one has challenged would have received two votes, let alone five. So to hold the court, he wrote a concise opinion that analyzed the precedent. I much prefer Thomas’ agreements and dissents to majority opinions. It’s still a miracle that he held Brown together. But ultimately, as Justice Barrett acknowledges, Sami brings the Court’s case law on the confrontation clause back to its historical roots. The gravitational force of the Constitution continues to pull. Maybe in a future case, Bruton itself can be reconsidered. I am generally of the view that any Brennan decision that overturned the precedent without regard to stare decisis should itself be overturned without stare decisis.