When I was a 2L, 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.
Great success! But not all facets of the Court's Confrontation Clause jurisprudence are premised on originalism. Case in point, Bruton v. United States (1968). This decision concerned a joint trial of two defendants. Defendant #1 had confessed, and implicated Defendant #2. A postal inspector testified about that oral confession by Defendant #1, which included the statement that implicated Defendant #2. The trial judge ruled that the testimony could be used to support Defendant #1's guilt, but instructed the jury that the testimony was inadmissible hearsay with regard to Defendant #2.
A prior decision of the Court, Delli Paoli v. United States (1957), held that the trial judge's limiting instruction was permissible. But on appeal, Bruton held that the limiting instruction was insufficient, and thus the introduction of the testimony violated the Confrontation Clause. Justice Brennan wrote the majority opinion. You can predict what happened. The Court reversed Delli Paoli without any discussion of stare decisis or precedent. Zero. And there is also no discussion at all about why the original meaning of the Sixth Amendment supports that result. Justice Brennan doesn't even bother quoting the text of the Confrontation Clause. The entire decision was premised on the risk that the jury would disregard the instruction, because of fairness concerns. That's how the Court rolled in 1968, which was probably the apogee (nadir) of the Warren Court's activism.
