In lengthy statements, Justices Alito and Gorsuch take issue with (modern, originalist?) Confrontation Clause jurisprudence

In the (decidedly non-originalist) opinion in Williams v. New York, 337 U.S. 241 (1949), the Supreme Court rejected arguments that a defendant had a right to confront witnesses whose testimony was used against him by a judge at sentencing.  The textual and historical basis for this ruling has never seemed especially solid, as evidenced by law review articles here and here.  And yet, courts continue to state and hold that "a sentencing court is ... not bound by the Confrontation Clause." US v. Raheem, No. 23-5324 (6th Cir. Feb. 12, 2025), even though 20+ years ago the Supreme Court recast Confrontation Clause jurispudence in originalist terms with its landmark ruling in Crawford v. Washington, 541 U.S. 36 (2004). 

I provide all this backstory to highlight why sentencing fans, and not just trial lawyers, ought to be intrigued by two extended statements, appearing at the end of today's Supreme Court order list, authored by Justices Alito and Gorsuch in conjunction with a denial of certiorari in Franklin v. New York.  Justice Alito's statement runs four pages and Justice Gorsuch's runs eight; both statements call for reconsideration of the originalist(?) jurisprudence that has developed since Crawford.  Here is how Justice Alito's statement concludes:

[A]s both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair.  If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.

If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.

Intriguingly, Justice Alito's statement suggests he would be drawn to a more limited application of the Confrontation Clause as part of the "reconsideration"' that he says is "needed."  But Justice Gorsuch's statement concludes with a footnote seemingly pushing in the other direction: "reexamining the relevant history might well require us not only to “reaffir[m]” Crawford, as JUSTICE ALITO suggests, ante, at 4, but to broaden its protections."

Unsurprisingly, neither Justice speaks to sentencing issues in their statements, but their statements take me back to my Sentencing Matters Substack substack post a few months ago, "Initial musings on the Supreme Court’s originalist turn and sentencing issues."  In that post I noted that "many modern sentencing doctrines and practices seem still in tension with a robust originalist approach to the Sixth Amendment."  I do not expect these new statements to change this story.  Still, I think it quite important, quite telling and quite notable that at least two Justices are seemingly eager to reconsider a (problematic?) criminal justice jurisprudence that has already taken an originalist turn while there are so many other (problematic!) criminal justice doctrines that have not yet been given much, if any, serious originalist attention.