[As an aside, the Supreme Court today also overturned of a bankruptcy related ruling Sotomayor joined but did not write; "We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion." It emphasizes the opinion is "narrow," and appears to focus on only part of what the lower court did. Meanwhile, CJ Roberts joined the 'liberals' to support a double jeopardy claim arising out of the Enron prosecutions.]
To my great disappointment, recent news reports indicate that the Obama Justice Department has decided not to reverse the Bush administration's decision to weigh in on Alaska's side in the case, District Attorney's Office for the Third Judicial District v. Osborne. As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.
What interest does Alaska have in denying Osborne access to this evidence, thus obscuring the truth? He has offered to pay for the testing, so the state will incur no financial cost. In any case, federal money is available to help pay for testing for those who cannot afford it. Osborne did not willfully bypass advanced DNA testing when he was tried 14 years ago; the sophisticated testing he requests did not exist then.
-- William S. Sessions, now a partner at the law firm Holland and Knight, directed the FBI from 1987 to 1993. Previously, he served as a federal judge and U.S. attorney in Texas.
The current DA of Manhattan agreed in an op-ed -- allow the DNA test, what do you have to worry about, especially since we assured the person is guilty. The Obama Administration, as is its wont (see update/video), supported such testing (in some form) as a policy choice. See also, its recent brief in support of DOMA, which it assures us it opposes, which goes that extra mile to not only defend the law (e.g., try to get rid of the case on standing grounds) but emphasize how damn sensible the whole thing is. Suffice to say, this was not somehow compelled by executive duty.
We are a country of good policy, not men. The Supreme Court today agreed [note Alito/Kennedy's opinion potential scope] on the DNA issue in a 5-4 vote. Justice Souter had a separate dissenting opinion,* providing a model for his successor to follow -- a careful respect for the law:
I would not decide Osborne’s broad claim that the Fourteenth Amendment’s guarantee of due process requires our recognition at this time of a substantive right of access to biological evidence for DNA analysis and comparison. I would reserve judgment on the issue simply because there is no need to reach it; at a general level Alaska does not deny a right to postconviction testing to prove innocence, and in any event, Osborne’s claim can be resolved by resort to the procedural due process requirement of an effective way to vindicate a liberty interest already recognized in state law
Souter also continued to provide a constitutional vision that helps add to his legacy. One that ideally provides a careful eye to determine if constitutional rights are being violated:
But taken as a whole the record convinces me that, while Alaska has created an entitlement of access to DNA evidence under conditions that are facially reasonable, the State has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the Due Process Clause.
Souter also got a bit philosophical:
Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.
He suggests, though does not feel the issue needs to be addressed here (given what the state already protects), that DNA testing has reached the point where courts can legitimately require it on due process grounds as a freestanding issue. This would be a result of his favored common law case by case approach, one that provides an continual evolution of basic constitutional principles (which stay the same, only their specific applications change). This is particular the case when applying "due process," but has wider implications.
[As for the implications of this specific case, see here; also coverage here. Courts are in place to help deal with those who fall in between the cracks, so the fact that many get protection all the same is of limited value. Ditto the fact this specific litigant was dubious on certain grounds -- the rule does not just apply to him. A means to prove innocence via DNA testing should also not rise or fall on questionable defense tactics at trial. And, the basic principle of the opinion goes beyond this specific issue of DNA testing, as Souter's dissent underlines.]
Souter has said he was guided by the vision of his predecessor, Justice William Brennan. Not a bad idea this time around.
---
* Justice Stevens went a step further [also calling out Alito's concurrence for badly going out of its way to defend Alaska's side in ways that the state itself did not] and more strongly supported a right of DNA testing that Souter deemed unnecessary to address yet given the nature of the case, highlighting in the process his long stated belief that our basic rights are not a creation of the Constitution, but just recognized by that document:
The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”); see also Meachum v. Fano, [1976] (Stevens, J., dissenting).
A Justice Sotomayor is more likely to take the Souter approach, for good or ill, but I'm all for a strong libertarian voice on the Court ... it just is not reasonable to think Obama would select one. OTOH, her opinions suggest a tendency to carefully look at the facts of a case in such a way that she could very well call other justices on it when they spin them to their liking.