Page:Samia v. United States.pdf/34

10 history helping the majority. See (opinion concurring in part and concurring in judgment). But assume for a moment to the contrary: Suppose with the majority that at some relevant time, courts conducting joint trials admitted unredacted co-defendant confessions subject only to limiting instructions. If that history controlled, Bruton itself would have been wrongly decided. The majority’s real views thus come into focus. The point of its opinion is not to distinguish the confession here from the one in Bruton. The point is to say why Bruton should go.

And so one might wonder after reading today’s decision whether Bruton is the next precedent on this Court’s chopping block. The one reason it may not be is that there is now no need for formal overruling: Under this decision, prosecutors can always circumvent Bruton’s protections. Consider once more John’s confession implicating Mary in a robbery—a confession, I’ll now add, bearing a striking resemblance to the one in Bruton. See 391 U. S., at 124 (“A postal inspector testified that Evans orally confessed to him that Evans and [Bruton] committed the armed robbery”). The Bruton rule will still bar the prosecution from using the original version of John’s confession, expressly naming Mary. So too the rule will prevent the prosecution from swapping out Mary’s name for a blank space or the word “deleted.” But no worries—the government now has a functionally equivalent placeholder at its (Court-sanctioned) disposal. It can simply replace Mary’s name with “a woman,” and the Bruton issue will go away. But contrary to today’s decision, the serious Sixth Amendment problem remains. Now, defendants in joint trials will not have the chance to confront some of the most damaging witnesses against them. And a constitutional right once guaranteeing that opportunity will no longer. It will become, in joint trials, a shell of its former self. I respectfully dissent.