Doctrinal War in Ohio v. Clark

All nine Justices of the Supreme Court voted the same way in last Term’s much-anticipated Confrontation Clause decision,Ohio v. Clark. All agreed that the admission at trial of an out-of-court statement made by a 3 year-old to his teacher identifying his abuser did not violate the Sixth Amendment rights of the accused. Howeverunanimous the vote for outcome, theClarkcourt was deeply divided on the justification for this result. Indeed,Clarkstands aslatest salvo in longstanding doctrinal war over the meaning of the Confrontation Clause and the reach of theCrawfordline of cases. In this post, I map out the lineage of this bitter war’s competing sides.

To understand the battle lines, recall firstthatCrawfordwas decided in 2004 and it overruleda 1980 case calledOhio v. Roberts. Justice Scalia wroteCrawfordand he has jealously guardedCrawford‘s doctrinal development ever since. Justice Alito, a former prosecutor, wrote the majority opinion inClark. In his separateClarkconcurrence, Scalia pointedly rejects Alito’s reasoning:

The opinion asserts that future defendants, and future Confrontation Clause majorities, must provide “evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding.”This dictum gets the burden precisely backwards—which is of course precisely the idea.Defendants may invoke their Confrontation Clause rights once they have established that the state seeks to introduce testimonial evidence against them in a criminal casewithout unavailability of the witness and a previous opportunity to cross-examine. The burden is upon the prosecutor who seeks to introduce evidenceover this bar to prove a long-established practice of introducing specifickinds of evidence, such as dying declarations []for which cross-examination was not typically necessary.

Revealingly, Scalia thencontinues:

A suspicious mind (or even one that is merely not naïve) might regard this distortion as the first step in an attempt to smuggle longstanding hearsay exceptions back into the Confrontation Clause—in other words, an attempt to return to Ohio v. Roberts.But the good news is that there are evidently not the votes to return to that halcyon era for prosecutors; and that dicta, even calculated dicta, are nothing but dicta. They are enough, however, combined with the peculiar phenomenon of a Supreme Court opinion’s aggressive hostility to precedent that it purports to be applying, to prevent my joining the writing for the Court.

Here Scalia transparentlyaccuses Alito the prosecutor oftrying to subvertCrawfordand reinstate the deposed rule ofOhio v. Roberts. And Scalia is quite right to make this accusation.

As I’vepreviously written,Crawforddoctrine has had its bashers since at least 2008’s Giles v. California. Although theCrawford-bashing school remainedin dissent inGiles and 2009’sMelendez-Diaz v. Massachusetts, the insurgency captured a majority in 2011’s Michigan v. Bryant(over Scalia’s dissent) and now again inClark. This basic story is visualized inMap 1below (for versions of the maps that have Casetext links to the cases embedded, click below each image below).

(Click here for full size map.)

InMap 1, the “Scalia line” asserting a robust Confrontation Clause vision is pictured in green while the “bashing line” is in red. Arrows pointing up indicate opinions where the author concluded the Sixth Amendment was violated, whereas downward-pointing arrows represent arrows where the author concluded no violation occurred. The number of votes any opinion received is represented by its position on the Y axis.

WhileMap 1presents a simplified picture of the main competing lines sinceCrawford, it would be wholly inaccurate to suggest that Crawford marks the beginning of the doctrinal war. As mentioned,CrawfordoverruledRobertsand the overruling campaign took over two decades to succeed.Map 2provides a glimpse at the longer dialectic.

(Click here for full size map).

InMap 2, we seeCrawford‘s ancestral line pictured in lime green while the deposedOhio v. Robertsline is represented in magenta. Dotted lines connecting opinions on the map indicate implied connections rather than direct citations. The map suggests a continuity between Alito’s majority opinion in Clark and Justice Blackmun’s majority opinion in Roberts35 years ago.

Crawford's ancestryis fascinating. Scalia was not yet on the Court whenRobertswas decided in 1980. He had joined by the timeKentucky v. Stincerwas decided in 1987. Interestingly, Scalia joined the majority in that case (opinion again written by Blackmun). Justice Marshall dissented inStincerand was joined by Brennan and Stevens. Then Scalia apparently had a change of heart. In 1988’sCoy v. Iowa, Scalia wrote the majority opinion. He was joined by Brennan, White, Marshall, Stevens. The old guard dissented — O’Connor wrote with Blackmun and Rehnquist joining. Remarkably, Scalia cited Marshall’sStincerdissent in his majority opinion. This signaled the beginning of a beautiful relationship. From then on, Scalia, Brennan, Marshall, and Stevens becamebest of friends in the Confrontation Clause arena.

ConsiderMaryland v. Craig, decided in 1990. Those four strange bedfellows (Scalia, Brennan, Marshall, and Stevens) all dissented.Scalia writing for his new gang. And the doctrinal war was on in earnest. The old guardsaw O’Connor penthe majority opinion joined by her comrades Rehnquist, White, Blackmun and Kennedy. The plot thickened even more in 1992’sWhite v. Illinois. At this juncture, the old guard still retainedcontrol. ThoughChief Justice Rehnquist authored theWhitemajority opinion, newcomer and upstart Clarence Thomas issued a prescient separate concurrence. Thomas presented an originalist theory of the Confrontation Clause and Justice Scalia joined him.

Change was in the air. By the timeLilly v. Virginiawasdecided in 1999, the Court was fractured. The lead opinion was written byJustice Stevens and only got four votes. More importantly, Justice Rehnquist’s concurrence only garnered O’Connor and Kennedy’s votes. Scalia and Thomas both separately concurred proclaiming their allegiance to the vision set down in Thomas’Whiteconcurrence.Then the revolution happened in Crawford. Chief Justice Rehnquist wrote separately to say that he disapproved of overrulingRoberts. Though O’Connor joined him, the old guard was clearly deposed. Blackmun and White had left. Kennedy had waffled. And so a new era was ushered in.

Now, of course, the pendulum may be swinging back towards the old era. Scalia is clearly worried inClarkthat Alito is trying to reinstatethe deposedOhio v. Robertsline to the doctrinal throne. Only Ginsburg is solidly aligned with Scalia at the moment. Only time will tell if Alito’s campaign will win the necessary votes.

Readers interestedin taking a deeper dive canto explore the opinions in detail. Hopefully, the maps can help readers navigate the complex doctrine while Casetext can provide a way for folks to annotateand muse about meaning. Before signing off, however, I want to present one final map. It isMap 3below.

(Click here for full size map).

Map 3is the same asMap 2except that it adds in Justice Thomas’ post-Crawford opinions. Although many might find Thomas’ solo efforts quixotic, I havepreviously suggestedthat he has often played the swing-vote role in this area. Moreover, as shown above, Thomas’ concurrence in White exerted a an important influence on the doctrine’s development. Love him or hate him, the man deserves some props. And sometimes it is the quietly consistent voices that can take command of a doctrine and shape its destiny.

This piece was originally posted on the blog for the Supreme Court Mapping Project.