Justice Scalia’s concurring opinion in Ohio v. Clark, joined by Justice Ginsburg, absolutely excoriates Justice Alito (by name!) for his attempt to stealthily overrule Crawford v. Washington. In Crawford, Justice Scalia garnered a majority to adopt an originalist understanding of the Confrontation Clause. In 2007 (before Heller), I recall Scalia saying that Crawford is the opinion he is most proud of. Since Crawford, the Court has chipped away at the holding, and brought the law back closer to Ohio v. Roberts, the so called “indicia of reliability” standard that existed for two decades before. Ohio v. Clark is another step on that process. In response, Scalia opens up with both barrels at Justice Alito.

I write separately, however, to protest the Court’s shov­ eling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Craw- ford v. Washington, 541 U. S. 36 (2004). For several dec­ ades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “‘indicia of reliability.’” Ohio v. Roberts, 448 U. S. 56, 66 (1980). Prosecutors, past and present, love that flabby test. Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses—i.e., statements that were testimonial. 541 U. S., at 51. We defined testimony as a “ ‘solemn declara­ tion or affirmation made for the purpose of establishing or proving some fact,’” ibid.—in the context of the Confronta­ tion Clause, a fact “potentially relevant to later criminal prosecution,” Davis v. Washington, 547 U. S. 813, 822 (2006).

Scalia, referring to Alito as “the author” faults the Justice for being unable to overturn Crawford, so he pretends like it doesn’t exist.

Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an earlier line of cases been described as nothing more than “adopt[ing] a different approach,” ante, at 4—as though Crawford is only a matter of twiddle-dum twiddle-deepreference, and the old, pre-Crawford “approach” remains available? The author unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by in- ability to muster the votes to overrule them. Crawford “does not rank on the (author of the opinion’s) top-ten list of favorite precedents—and … the (author) could not restrain [himself] from saying (and saying and saying) so.” Harris v. Quinn, 573 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15).

In case you couldn’t tell, in Harris v. Quinn, Justice Kagan referred to “the majority,” which in this case was also Justice Alito.

Scalia continues that Justice Alito is trying to “smuggle” Ohio v. Roberts back into the confrontation clause:

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 hear­ say exceptions back into the Confrontation Clause—in other words, an attempt to return to Ohio v. Roberts.

But there are not 5 votes for this position:

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 hear­ say exceptions back into the Confrontation Clause—in other words, an attempt to return to Ohio v. Roberts.

No love lost there.