Introduction

If you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views can­didly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority opinions need four other justices to sign on, and while finding four justices to share Scalia’s outlook was a dream to some,1 the Court in his time never approached that ideal. Indeed, the only majority opinion that seems to pop up with any consistency in these “best of” lists is District of Columbia v Heller.2

Without in any way downplaying the significance of Heller, I want to offer another candidate for the title of “most important majority opinion” authored by Scalia that I think tops Heller, and all of his other majority opinions, across virtually all relevant dimensions of importance: Crawford v Washington.3 Crawford did not make headlines on the nightly news when it was decided (or at least I don’t recall them). I doubt whether many interest groups have Crawford on their list of cases about which to quiz or evaluate nominees for the Supreme Court; it certainly does not seem to have been on anyone’s agenda during the confirmation hearings for Scalia’s successor, Justice Neil Gorsuch. Perhaps it should have been, because Crawford is among the most important constitutional cases in modern times.

Crawford set forth a new—or, if one thinks it accurately captured original meaning, a very old—methodology for determining when the use by prosecutors of out-of-court statements violates a criminal defendant’s right “to be confronted with the witnesses against him.”4 In the decades prior to Crawford, the Court read the Confrontation Clause of the Sixth Amendment very narrowly to prohibit only the use of out-of-court statements that both made it through nonconstitutional hearsay law because of relatively novel or eccentric hearsay exceptions and were deemed by the Court to be “unreliable” to boot.5 Crawford enormously expanded the scope of application of the Confrontation Clause to all “testimonial” out-of-court statements—very roughly meaning statements whose primary purpose or expectation when made was to provide evidence against a defendant6—unless there has been a prior opportunity for the defendant to cross-examine the declarant of the statement and the statement’s declarant is unavailable to testify.7 This category of “testimonial” statements includes documentary statements made with an eye toward establishing someone’s guilt, such as police laboratory reports of DNA results and drug analyses. Even if the applicable state or federal law has a hearsay exception to admit those reports—and it almost always does—the Confrontation Clause, as interpreted by Crawford and subsequent opinions,8 requires the analyst who made the statements in the report to testify or otherwise be subject at some point to cross-examination before those statements are admissible.9

The monumental importance of this doctrine can best be seen through its enemies, who now include Justices Samuel Alito, Stephen Breyer, and Anthony Kennedy, and Chief Justice John Roberts. When faced with the application of the Crawford doctrine to laboratory reports, those four justices—who one would not often group together as a voting bloc—now seem willing to toss out the entire Crawford framework rather than face its consequences.10 After little more than a decade, what I am describing as Scalia’s most important majority opinion is in real danger of ending up in the dustbin of history.

Even if Crawford is overruled tomorrow, however, it will still be Scalia’s most important majority opinion. The enormous influence it has had on the course of criminal justice is only one relatively minor reason why Crawford is so fundamental. There are at least two far more important reasons to focus on the decision even if it does not survive. For one thing, it is perhaps the most illustrative example of Scalia’s originalist methodology for constitutional interpretation, highlighting both the strengths and weaknesses—and I am ultimately going to focus on one very big potential weakness—of that approach. Heller certainly does duty for that task as well, but Crawford might be even more powerful, partly because it led to the overruling of decades of prior case law but mostly because it starkly illustrates the problems of applying a jurisprudence of original meaning in a world shaped by nonoriginalist precedents. For another—and I think even more crucial—thing, Crawford brings home Scalia’s most enduring contribution to jurisprudence: the idea that methodology matters. That might seem trite, but those young’uns who did not live through the period before Scalia joined the Court may not appreciate how revolutionary that simple idea was to the legal community in past times. Scalia was a very powerful repudiation of at least a primitive version of the “attitudinal model” of judicial decision-making, which very roughly purports to explain judicial decisions based on political ideology and ideological factors,11 and Crawford is one of the leading exhibits for that claim.

Part I of this Essay explores that jurisprudential contribution by recalling just how strange, and even unthinkable, it seemed to many people in 1986 that someone might actually decide cases based on methodology rather than party politics. Part II looks more specifically at the reasoning in Crawford to see how it exemplifies Scalia’s constitutional methodology. Part III briefly discusses how those jurisprudential and methodological points meld to present some difficult, underexamined problems for originalist jurists.

  • 1. “A nightmare to others!” Merlin, played by Nicol Williamson, in Excalibur (Warner Bros 1981).
  • 2. 554 US 570 (2008). For a typical example from the popular press that compactly combines both points that I just made, see the Washington Post story from just after Scalia’s death: “Justice Scalia was far better known for fiery dissents than for landmark majority opinions. One exception was the court’s groundbreaking 2008 decision in District of Columbia v. Heller.” Robert Barnes, Supreme Court Justice Antonin Scalia Dies at 79 (Wash Post, Feb 13, 2016), archived at http://perma.cc/A35B-R9YE.
  • 3. 541 US 36 (2004).
  • 4. US Const Amend VI.
  • 5. See Crawford, 541 US at 60 (“Roberts conditions the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay evidence exception’ or bears ‘particularized guarantees of trustworthiness.’”), quoting Ohio v Roberts, 448 US 56, 66 (1980).
  • 6. Crawford, 541 US at 51, 68 (noting that “‘[t]estimony’ . . . is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact’” but declining to provide “a comprehensive definition of ‘testimonial’”) (alterations omitted).
  • 7. Id at 68 (“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”).
  • 8. See, for example, Melendez-Diaz v Massachusetts, 557 US 305, 308–09, 329 (2009) (holding that, under Crawford, admission of certificates from laboratory analysts without an opportunity to cross-examine the analysts violated the Confrontation Clause).
  • 9. There are exceptions. The Crawford rule applies only to statements admitted as evidence of their truth, see Crawford, 541 US at 59 n 9, and as with most constitutional protections, the rights protected under Crawford can be waived or forfeited, see Giles v California, 554 US 353, 367–68 (2008) (describing the doctrine of “forfeiture by wrongdoing”). The “nontruth” exception is potentially quite important if it extends, as four justices have maintained it does, to statements that underlie or account for expert testimony. See Williams v Illinois, 567 US 50, 58 (2012) (Alito) (plurality) (“Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.”).
  • 10. See Bullcoming v New Mexico, 564 US 647, 684 (2011) (Kennedy dissenting) (“[I]t bears remembering that the Crawford approach was not preordinated. . . . It is time to return to solid ground.”).
  • 11. See notes 18–19 and accompanying text.

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