In a curious twist of logic, Josh Blackman recounts when Nino Scalia was asked which of his decisions he was most proud of.

When I was a 2L, I attended an event on Justice Scalia’s book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

Frankly, it’s the Scalia decision that’s most appreciated by many criminal defense lawyers as well, as exceptions to hearsay, meaning admission of evidence without cross, were swallowing the rule. Yay, Nino? Not for his one-time protege turned oral argument chatty fellow.

Fast-forward to the present-day, and Samia v. United States. In this case, Samia and his accomplices were tried jointly. One of the accomplices had confessed, and implicated Samia. The prosecutors introduced that confession. But to avoid running afoul of Bruton, the witness substituted Samia’s name for the phrase “other person.” As a result, Samia was never directly implicated. And the trial court judge instructed the jury to not use that confession with regard to Samia. On appeal, the defendant asked the Supreme Court to extend the line of cases that began with Bruton, and reject the “other person” workaround.

To the extent this is confusing, a confession by a co-defendant is introduced through an agent since the prosecution can’t force the co-defendant to testify. When the confession not only implicates the person who confessed, but a co-defendant being tried jointly because the confessor names his co-defendant in the confession, Bruton says that it can’t be introduced into evidence and a curative instruction, where the judge tells the jury that it only applies to one defendant and the jury should not consider it against the other, doesn’t cut it.

In the 6-3 majority opinion in Samia, Justice Thomas wrote that with this one cool trick, the Bruton problem magically disappears because originalism doesn’t require the Court to extend the Crawford Confrontation Clause that far. Instead of just a curative instruction, as rejected in Bruton, the Court held that replacing the defendant’s name with “some other person” while describing what he did (in this case, Samia was the passenger who shot a woman in the head while the confessor was the driver). Of course, the prosecutor can argue in the opening that Samia was the passenger while the confessor was the driver.

Somehow, the Court accepted that this was a reasonable accommodation to allow the confession into evidence without violating the Confrontation Clause because the jury would never connect the prosecution’s argument to the “other person” in the confession because the judge would give a limiting instruction that the jury shouldn’t consider the confession against Samia. And as all judges believe, jurors always do as the judge instructs.

Josh argues that this is the right originalist ruling.

Unlike in Crawford, there is virtually nothing in Samia that speaks to the original meaning of the Confrontation Clause, as understood in 1791.

But Justice Barrett in her concurrence brings up a problem with the originalist approach.

For whatever reason (the parties only speculate),there appears to be little founding-era evidence illustrating how courts handled the admission of a codefendant’s confession. So why not simply say that the history is inconclusive?

At best, the evidence recounted in Part II–A shows that, during a narrow historical period, some courts assumed and others expressly held that a limiting instruction sufficiently protected a codefendant from a declaration inadmissible on hearsay grounds. In suggesting anything more, the Court overclaims. That is unfortunate. While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most.

But Josh’s takeaway from this is the opposite of what most would expect.

Barrett’s counsel seems prudent. Why discuss history that has no bearing on the constitutional question? The simpler originalist answer is that if there is no historical basis to establish a constitutional right, the purported right does not exist.

What’s missing is that Bruton was already established precedent. In the absence of clear historical proof that Bruton was decided in conflict with an originalist interpretation, does the “right not exist” or does stare decisis dictate the established right should not be tacitly overruled?  As Justice Kagan notes in dissent, the majority decided to ignore Justice Brennan’s Bruton ruling as if it doesn’t count and the Court’s under no duty to respect precedent when it doesn’t feel like it.

That analysis altogether fails to capture what our Bruton cases care about.

But that distinction makes nonsense of the Bruton rule.

So the majority warps our Bruton precedent by categorically putting the two on opposite sides of the constitutional line.

Even Josh recognizes that slavish adherence to originalism often fails to contribute anything useful or principled to analysis of the law, and has no place in the analysis. But when, as Kagan notes, it means that a longstanding precedent that just happens to have a firm foundation in the Confrontation Clause that Scalia held so dear, gaming it with a ruling that will so easily allow Bruton to be circumvented and, thus, effectively nullified, wasn’t Justice Thomas’ best trick.

Justice Thomas does not acknowledge the non-existent originalist foundation for Bruton. And Justice Thomas didn’t explain how there is no historical support for the extension of that rule. Instead, he tried to parse some old precedents that, as Justice Barrett explains, were about the rules of evidence and not the Sixth Amendment.

Having no particular interest in bending over backwards to defend Justice Thomas, and being disinclined to desperately seek a way to apply originalism where it has neither application nor historical support, it’s hard to ignore that the Court’s ruling just blew Bruton out of the water even though it neither said so nor explained why Bruton should be overruled. In the process, the Court ran roughshod over Scalia’s (and my) beloved Confrontation Clause rationale, all for the sake of gaming hearsay to assure Samia’s conviction.