"Even Scalia should have problems with this ..." wrote a commenter to a TalkLeft posting last fall after the oral argument in Crawford v. Washington. In the case the Washington state court had allowed the prosecution to use a recorded statement made by the defendant's wife, who did not testify at trial because the state has the kind of spousal privilege where the spouse can't testify without the defendant's consent, and Crawford did not consent. The Washington state court permitted the recorded statement to be used because there was enough evidence of its trustworthiness. Crawford said that violated his Sixth Amendment right to confront the witnesses against him and, yesterday, the Supreme Court agreed.

The idea that "even Scalia" would find a right here is inapt because it is exactly the history-based textualism that his critics complain about that leads him to a literal interpretation of the idea of confronting witnesses at trial. Scalia writes the opinion in Crawford:

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” ... Reliability is an amorphous, if not entirely subjective, concept. There are countless factors bearing on whether a statement is reliable; the nine-factor balancing test applied by the [lower state court] is representative. ... By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like [Sir Walter] Raleigh’s -- great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.

... Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

Surely, Justice Scalia deserves credit for the principled application of his methodology. Is he getting any? I only found one reference in NEXIS for "Scalia and Crawford and (textualism or textualist)." That was a brief note in a piece in the Washington Post that the majority included "the court's two leading adherents to a 'textualist' approach to reading the Constitution, Scalia and Justice Clarence Thomas." I haven't seen anything Googling either. I'll update here if anything turns up.