Alito and Gorsuch ask the court to reconsider the precedent of the confrontation clause
SCOTUS NEWS
The confrontation clause of the Sixth Amendment gives criminal defendants the right to “be faced with the witnesses against them” in criminal cases. The Supreme Court declined to rule on whether a statement made outside of court to a bail recommendation agency is a “testimony” to which the Sixth Amendment would apply. The court’s order in Franklin v. New York, denying review, was part of the list of orders released Monday morning following the justices’ March 21 private conference. The justices didn’t add any new cases to the docket of their 2025-26 term. He was convicted and appealed, where he argued that the use of the report violated his rights under the confrontation clause. 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 wrote a statement about the denial of review. He agreed that the court was right to reject Franklin’s appeal, but urged them to reconsider the “interpretation of the Confrontation Clause” that they adopted more than 20 year 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 pointed out that the Supreme Court issued a decision “less than a month ago” interpreting the clause of confrontation, and suggested that the lower courts should have time to apply this decision before the justices weigh-in again. He also suggested that the justices might need to “rethink our course soon.” According to Sullivan, public figures and public officials must prove “actual malice,” which means that the defendant acted with “reckless neglect” or knew that the statement was false. This dispute stems from a recent article by the Associated Press that accused Wynn of sexual abuse in 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. The other justices don’t seem to be inclined to respond 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 hold another private conference on Sunday, March 28. A list of orders issued at that conference will be published on Monday, March 31 at 9:10 a.m.
