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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 18, 2015 ::
    CONFRONTATION CLAUSE ALERT: This morning's Ohio v. Clark is a time-bomb under Crawford v. Washington (much as, I have argued, Crawford was potentially - may still be - a time-bomb under Maryland v. Craig). Clark is unanimous as to outcome, but the Scalia-Ginsburg concurrence outright accuses the "author" of the majority - that would be Justice Alito - of weakening Crawford through word-choice and dicta, because - their words, not mine - via "unabashedly display[ing] his hostility to Crawford and its progeny, perhaps aggravated by inability to muster the votes to overrule them." (Scalia, J., concurring in judgment, slip op. at 3).

    According to the majority, Crawford "adopted a different approach" than Ohio v. Roberts, which had permitted any unconfronted hearsay that bore "indicia of reliability." Crawford didn't change an approach: it overruled Roberts: explained why it was bad law and bad history, and drove a stake through its heart. (See e.g. this, discovered fortuitously). The Court today takes a step, although a small one, toward making them sound like two equally valid approaches.

    :: David M. Wagner 11:57 AM [+] ::

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