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.
