Alito and Gorsuch call for court to reconsider confrontation clause precedent – SCOTUSblog

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The Sixth Amendment’s confrontation clause gives defendants in criminal cases the right to “be confronted with the witnesses against” them. The Supreme Court on Monday morning declined to decide when a statement that is made out of court to an agency responsible for making bail recommendations is the kind of “testimonial” statement to which the Sixth Amendment applies. However, two justices – Samuel Alito and Neil Gorsuch – suggested that the court may need to reconsider its cases under the confrontation clause more broadly.

The court’s order denying review in Franklin v. New York was part of a list of orders released on Monday morning from the justices’ private conference on March 21. The justices did not add any new cases to their docket for the 2025-26 term.

Cid Franklin was arrested in New York and then questioned (without a lawyer) by a publicly funded agency that makes bail recommendations to the judges who arraign defendants. At Franklin’s trial, prosecutors sought to use the bail report to show Franklin’s guilt, and without providing him with a chance to question the report’s author. He was convicted and appealed, where he argued that the use of the report violated his rights under the confrontation clause.

The state’s highest court rejected Franklin’s argument, concluding that the Sixth Amendment bars the use of out-of-court statements that are “testimonial” – which, it explained, applies only to statements created for the “primary purpose of serving as trial testimony.”

Franklin came to the Supreme Court, which on Monday rejected his petition for review. Alito penned a statement regarding the denial of review in which he agreed that the court had properly turned down Franklin’s appeal but urged the court to reconsider “the interpretation of the Confrontation Clause that the Court adopted” more than 20 years ago in Crawford v. Washington. “Historical research,” Alito wrote, “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.”

Gorsuch also agreed with the decision not to take up Franklin’s case. He noted that the Supreme Court had issued another decision interpreting the confrontation clause “less than a year ago,” and he suggested that it might be a good idea for the lower courts to have time to apply that decision before the justices weigh in again. But he too suggested that the justices “may need to rethink our course sometime soon.”

The justices turned down a plea from former casino magnate and prominent Republican donor Steve Wynn to overrule their landmark ruling in New York Times v. Sullivan, which set a high bar for public officials (and later public figures) to succeed in libel suits. Under Sullivan, public officials and public figures must show “actual malice” – that is, that the defendant either knew the statement was false or acted with “reckless disregard” – with clear and convincing evidence.

The dispute stems from a 2018 article by the Associated Press accusing Wynn of sexual assault during the 1970s. Wynn filed a defamation lawsuit, but state courts in Nevada ruled that he had not shown “actual malice.”

Justice Clarence Thomas has argued in the past several years that the Supreme Court should reconsider Sullivan, and Gorsuch echoed that call in 2021. However, the other justices do not seem inclined to answer that call right now. Indeed, as Adam Liptak noted in a story for The New York Times, Justice Brett Kavanaugh recently cited Sullivan with approval in an opinion earlier this year.

Moreover, the Associated Press waived its right to file a brief opposing Wynn’s petition for review, and the court denied review without instructing the AP to respond – a signal that they were not seriously considering the case.

The court once again did not act on several high-profile petitions for review that have been pending for several weeks, including challenges to Rhode Island’s ban on large-capacity magazines and Maryland’s ban on military-style assault rifles, as well as a challenge to the transfer of federal land in Arizona that the San Carlos Apache Tribe regards as a sacred site to a mining company.  

The justices will meet again for another private conference on March 28, with a list of orders from that conference to follow on March 31 at 9:30 a.m.

This article was originally published at Howe on the Court.