Scotus News
By Amy Howe
on 24 Mar 2025
At. 14.56
The judges gave no new cases on Monday. (Katie Barlow)
The Sixth Amendment’s Confrontation Clause gives defendants in criminal cases the right to “be confronted with the witnesses against” them. The Supreme Court Monday morning refused to decide when a statement made by the right to an agency responsible for making bail recommendations is the kind of “testimony” declaration for which the sixth amendment applies. However, two Justices – Samuel Alito and Neil Gorsuch – suggested that the court may need to rethink its cases under the confrontation clause more broadly.
Court order to refuse review in Franklin v. New York was part of a list of orders released Monday morning from Justices’ private conference on March 21. The judges added no new cases to their dock for the term 2025-26.
Cid Franklin was arrested in New York and then questioned (without a lawyer) by a publicly funded agency that makes bail recommendations to the judges arranging the defendant. At Franklin’s trial, prosecutors tried to use the bail report to show Franklin’s fault and without giving him a chance to question the report’s author. He was convicted and appealed, claiming that the use of the report violated his rights under the confrontation clause.
The state’s highest court rejected Franklin’s argument and concluded that the sixth amendments prevent the use of statements outside the court that is “testimony”-as explained, only applies to statements created for the “primary purpose of serving as a trial.”
Franklin came to the Supreme Court, which on Monday rejected his petition for review. Alito wrote a statement about the denial of the review, where he agreed that the court had properly rejected Franklin’s appeal, but called on the right to consider “the interpretation of the confrontation clause adopted by the court” more than 20 years ago in Crawford v. Washington. “Historical Research,” Alito wrote, “now questions Crawford‘s understanding of the relevant common law rules at the time of adopting the sixth amendment, and what else may be said about this decision, there can be no dispute that it has not given predictable and consistent results. “
Gorsuch also agreed with the decision not to take Franklin’s case. He noted that the Supreme Court had issued another decision that interprets the confrontation clause “less than a year ago” and he suggested it might be a good idea for the lower courts to have time to use this decision before the judges weigh in again. But he also suggested that the judges “may have to rethink our course once soon.”
The judges rejected a plea from the former casino magnat and prominent Republican donor Steve Wynn to override their landmark decision New York Times v. SullivanThere was a high bar for public officials (and later public persons) to succeed in libel suits. Under SullivanPublic officials and public persons must show “actual evil” – that is, the defendant either knew that the statement was false or acted with “reckless ignoring” – with clear and compelling evidence.
The battle comes from a 2018 article by Associated Press that accuses Wynn of sexual assault during the 1970s. Wynn filed a defense direction, but state courts in Nevada gave up that he had not shown “actually evil.”
Justice Clarence Thomas has for the past several years argued that the Supreme Court should consider Sullivanand Gorsuch repeated this call in 2021. However, the other rights do not seem to be likely to answer this call right now. As Adam Liptak noted in a story for the New York Times, Justice quoted Brett Kavanaugh recently Sullivan with approval in an opinion earlier this year.
In addition, the Associated Press waived his right to file a brief opposite Wynn’s petition for review, and the court refused review without instructing the AP to answer – a signal that they did not seriously consider the case.
The court once again did not act on several high-profile petitions for review, which has been pending for several weeks, including challenges to Rhode Island’s ban on magazines with high capacity and Maryland’s ban on attacks on military style, as well as a challenge to the transfer of federal country in Arizona that San Carlos Apache strain considers a sacred place to a minimum.
The judges will meet again for another private conference on March 28 with a list of orders from this conference to be followed on March 31 at 1 p.m. 9:30 pm
This article was originally published on Howe on the field.
