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Justice Alito’s opinion in Williams v. Illinois cites an old English case:

Recognizing that Lambatos’ testimony would carryweight only if the underlying premises could be established, the judge noted that “the issue is . . . what weightdo you give the test [performed by Lambatos], not do youexclude it.” Id., at 94. This echoes the old statement in Beckwith that an expert’s opinion based on disputed premises “might not go for much; but still it [is] admissible evidence.” 1 Camp., at 117, 170 Eng. Rep., at 897.

Justice Thomas, in his concurring opinion, says wait, not so fast.

2In its discussion of history, the plurality relies on Beckwith v. Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (K. B. 1807). In that case, experts were asked to render opinions on a ship’s seaworthiness based on facts read into court from the sworn ex parte deposition of a witness who purported to have seen the ship’s deficiencies. To be sure, Beckwith involved expert reliance on testimonial hearsay. But Beckwith was an English case decided after the ratification of the Confrontation Clause, and this form of expert testimony does not appear tohave been a common feature of early American evidentiary practice. See 29 Wright §6271, at 300–301; 1 Broun §14, at 86–87; Kaye §4.6, at156–157.

Oh snap. Post-enactment history from another country is not evidence of what the Confrontation Clause meant at the time of its ratification.

But wait, you say? Time of the ratification of the Confrontation Clause? This case does not involve the federal government–against whom the 1791 Confrontation Clause applies. Rather, it involves Illinois, against whom the 1868 Confrontation Clause applies, as incorporated through the Fourteenth Amendment.

But wait, I remind you. The court rejected this originalist reading of the Fourteenth Amendment in McDonald. So Justice Thomas correctly applied the Court’s flawed incorporation doctrine here. Even though his opinion in McDonald went the other way.

This case raises a question that I believe neither theplurality nor the dissent answers adequately: How doesthe Confrontation Clause apply to the panoply of crimelaboratory reports and underlying technical statementswritten by (or otherwise made by) laboratory technicians?In this context, what, if any, are the outer limits of the “testimonial statements” rule set forth in Crawford v. Washington, 541 U. S. 36 (2004)? Because I believe the question difficult, important, and not squarely addressed either today or in our earlier opinions, and because I believe additional briefing would help us find a proper,generally applicable answer, I would set this case for reargument. In the absence of doing so, I adhere to the dissenting views set forth in Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009), and Bullcoming v. New Mexico, 564 U. S. ___ (2011). I also join the plurality’s opinion.

He clearly wants to get rid of Melendez-Diaz. And he’s been watching a lot of CSI:

Once one abandons the traditional rule, there would seem often to be no logical stopping place between requiring the prosecution to call as a witness one of the laboratory experts who worked on the matter and requiring the prosecution to call all of the laboratory experts who did so. Experts—especially laboratory experts—regularly rely onthe technical statements and results of other experts to form their own opinions. The reality of the matter is thatthe introduction of a laboratory report involves layer upon layer of technical statements (express or implied) made byone expert and relied upon by another. Hence my general question: How does the Confrontation Clause apply to crime laboratory reports and underlying technical statements made by laboratory technicians?

And he’s not impressed with Kagan’s “whatever” dissent:

While, as a matter of purelogic, one might use those cases to answer a narrowedversion of the question presented here, see post, at 7–8 (KAGAN, J., dissenting), those cases do not fully consider the broader evidentiary problem presented. I consequently find the dissent’s response, “Been there, donethat,” unsatisfactory. See post, at 21.

I also like that flow-chart on p. 16 of Breyer’s opinion.

Update: Kagan in dissent notes that contrary to Breyer, the plurality is not quite ready to ditch Melendez-Diaz:

And althoughthe plurality is close, it is not quite ready (or able) to dispense with that decision. See ante, at 29, n. 13 (“Experience might yet show that the holdings in [Bullcomingand other post-Crawford] cases should be reconsidered”).So the plurality must explain: What could support a distinction between the laboratory analysis there and the DNA test in this case?4

4 JUSTICE BREYER does not attempt to distinguish our precedents,opting simply to adhere to “the dissenting view set forth in Melendez-Diaz and Bullcoming.” See ante, at 8 (concurring opinion). He principally worries that under those cases, a State will have to call to the witness stand “[s]ix to twelve or more technicians” who have worked on a report. See ante, at 5; see also ante, at 3, 16–18. But none of our cases—including this one—has presented the question of how many analysts must testify about a given report. (That may suggest that inmost cases a lead analyst is readily identifiable.) The problem in the cases—again, including this one—is that no analyst came forward to testify. In the event that some future case presents the multipletechnician issue, the Court can focus on “the broader ‘limits’ question” that troubles JUSTICE BREYER, ante, at 7. But the mere existence of that question is no reason to wrongly decide the case before us—which,it bears repeating, involved the testimony of not twelve or six or threeor one, but zero Cellmark analysts

 

Justice Kagan is very, very funny. She said something similar last term in one of the June cases.

Our practice of deferring to an agency’s interpretationof its own ambiguous regulations undoubtedly has important advantages,17 but this practice also creates a riskthat agencies will promulgate vague and open-endedregulations that they can later interpret as they see fit,thereby “frustrat[ing] the notice and predictability purposes of rulemaking.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (SCALIA, J., concurring) (slip op., at 3); see also Stephenson & Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449, 14611462 (2011); Manning, Constitutional Structure and  Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 655668 (1996). It is one thing to expect regulated parties to conform their conductto an agency’s interpretations once the agency announcesthem; it is quite another to require regulated parties todivine the agency’s interpretations in advance or else be held liable when the agency announces its interpretationsfor the first time in an enforcement proceeding and demands deference.

Accordingly, whatever the general merits of Auer deference, it is unwarranted here. We instead accord the Department’s interpretation a measure of deference proportional to the “‘thoroughness evident in its consideration,the validity of its reasoning, its consistency with earlierand later pronouncements, and all those factors which give it power to persuade.’” United States v. Mead Corp., 533 U. S. 218, 228 (2001) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)).

Christopher v. SmithKline Beecham Corp.

5 The legislative history, for those who think it useful, further showsthat the QTA addresses quiet title actions, as ordinarily conceived. The Senate Report states that the QTA aimed to alleviate the “[g]raveinequity” to private parties “excluded, without benefit of a recourse tothe courts, from lands they have reason to believe are rightfully theirs.”
S. Rep. No. 92–575, at 1. Similarly, the House Report notes that the history of quiet title actions “goes back to the Courts of England,” andprovided as examples “a plaintiff whose title to land was continually being subjected to litigation in the law courts,” and “one who feared that an outstanding deed or other interest might cause a claim to bepresented in the future.” H. R. Rep. No. 92–1559, p. 6 (1972). From topto bottom, these reports show that Congress thought itself to be authorizing bread-and-butter quiet title actions, in which a plaintiff asserts aright, title, or interest of his own in disputed land.

I’ve seen the “for those who think it is useful” in dissents to make fun of Scalia, but I’ve never seen it in a majority opinion, that cites legislative history, and Scalia joins.

Kudo to EK in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak for citing legislative history in a way that Scalia doesn’t abscond.