I Agree with Justice Roberts…

by Kevin Jon Heller

With the number of the exonerated now at 240, giving prisoners the right to prove their innocence through DNA testing would risk “unnecessarily overthrowing the established system of criminal justice.”

It might lead to a reasonably accurate one.


12 Responses

  1. A nice illustration of an appalling lack of empathy (and sympathy, compassion, mercy and the like for that matter) among the majority Justices (in their capacity as judges and in their identity as human beings) and an outstanding example of a fundamental failure to grasp the ethical and legal meaning of the phrase “criminal justice.” Moreover, it exemplifies an egregious inability to appreciate the virtues (such as they are or might be) of contemporary science. 

    Alas, as you imply, the ruling evidences a smug commitment to ORDER over and above the law and another variation on the theme of arbitrary justice.

  2. I have only read excerpts of the opinion and the dissents; nevertheless, insofar as I understand the issues, I hardly think these moral condemnations of the majority to be justified.  The majority simply has a view of the proper scope of the federal judicial power that is more modest than that which you would espouse.  The Chief Justice writes:

    “If we extended substantive due process to this area, we would cast these [existing state] statutes [governing access to DNA testing] into constitutional doubt and be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.

    “Establishing a freestanding [constitutional] right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives.”

    The view here expressed is not ipso facto evidence of a failure of empathy.  May we not construe the majority’s reluctance to constitutionalize questions of DNA access simply as a greater deference to democratic lawmaking on emerging questions?  It would be one thing if a state, by statute, expressly denied a convict access to potentially exculpatory evidence.  But that was not the issue here.  The majority thinks that the legislative process to deal with the new technology is still in progress, that it is proceeding well enough on its own (with 46 states having passed relevant laws), and so does not wish to constitutionalize the question.  There is nothing inherently unempathetic or morally blameworthy about taking such a position.

    The broader question here is whether the Supreme Court ought in the first place to play the role of deciding cases on the basis of its conception of what moral justice is.  Certainly, at least since the civil rights era, many have become used to the Supreme Court playing an expressly moral role.  Thus this and other posts judge the Court on the basis of whether the author believes its decisions yield a morally just result.  The critiques Professor Heller and Patrick O’Donnell offer here are not distinguishable in form of argument from those of the pro-life activists who argue that Roe v. Wade was wrongly decided because it was morally wrong, the legal merits all aside.

    The thing is, once you accept that the Court should have this power of moral review, you forfeit the authority to make legal critiques that are not simply masks for your personal moral preference.  For example, it is probably accurate to state that the federal judiciary in the late nineteenth century frustrated Reconstruction-era federal law acting out of a moral sense steepted in racist assumptions.  But if you accept that the Court properly has a moral role to play in society, and therefore that legal reasoning is merely secondary window-dressing, then you must also accept that the judiciary’s moral intervention against Reconstruction law was not inherently outside the proper scope of its power.  You can make a moral argument against what the Court did, but you cannot make a legal argument that it acted beyond its proper powers.  Nor can you, in earnest, argue the legal merits of those decisions – for the legal merits are always necessarily secondary to the moral result.

    For myself, though I accept the propriety of constitutional counter-majoritarian guarantees, I much prefer that what these shall be – and that moral decisions in general – be made by democratic means, however flawed, cumbersome, and slow the democratic process may be.

  3. Dogmatic federalism rears its ugly head again.

    Indeed, and we should have left it up to the states to enact civil rights legislation….

    There’s nothing undemocratic about recognizing a constitutional right in this instance.

    And who said it’s simply or solely about “moral review?” 

    Concern about morality intruding into legal questions is of course only legitimate when those of Liberal or Leftist persuasion make explicit connections between moral and legal principles. Moral and legal justice are inextricably bound up with each other, always have been and always will be. This does not make legal reasoning “merely window-dressing” (rather, it’s about keeping the windows clean, so we can better see through them).

  4. Since when is it an ethical/moral debate if one wants to know whether a certain person is, or is not, correctly convicted?

    Confronted with the ability to eliminate all doubt regarding guilt or innocence, what is so important (morally, ethically, legally) that we instead of embracing the opportunity we vehemently oppose it?

    Of course, a country that has no qualms about detaining individuals ad infinitum, without the possibility of judicial review, merely on the say-so of the Commander-in-Chief clearly is not entirely invested in preventing imprisoning innocent civilians. Hoorah for the rule of law.

  5. DNA evidence does not, in and of itself, eliminate all doubt.  There’s a multitude of ways it can distort, from being simply trace, to being a false or planted sample, or have been rendered useless by decay.

    We already prohibit the use of certain exonorating evidence, for example, you can’t force someone to self-incriminate to confess that they were actually the culprit, nor can you compel someone’s spouse to implicate them in a similar manner.

    I have no problem at all with this ruling.

    If the people wish to have a constitutional right to DNA evidence, they are free to enshrine it through the standard amendment process.

  6. M. Gross,

    So I suppose you are against convictions based on DNA evidence?  Or is it simply good enough to prove guilt beyond a reasonable doubt but not innocence?

    And the last time I checked, the Due Process Clause was already part of the Constitution.

  7. Maybe “eliminate all doubt” is a bit much, but “statistically implausable” comes pretty close.

    “There’s a multitude of ways it can distort, from being simply trace, to being a false or planted sample, or have been rendered useless by decay.” Having a scientific debate on the merits of the DNA-sample and its interpretation seems absolutely acceptable, and is already part of scrutinising all evidence. The conspiracy part (a false or planted sample) applies to all forms of evidence: i.e. witness, fingerprints, ballistic analysis, et cetera.

  8. I don’t understand why lefties want every question answered by due process. First, the overall point made about Constitutional deference is exactly right. If you don’t like America’s federal system, vote for another one or live somewhere else. But don’t just wish it away.

    Secondly, you should be careful what you wish for. Limited government, which includes limited federal Constitutional jurisprudence, is a fundamental bulwark against tyranny in forms. Lochner, after all, is a due process decision, as indeed were Plessy and Dredd Scott in part. Are you so confident that the lunatics will never again hold the keys, or do you think that labor laws are unconstitutional?

  9. “Dogmatic federalism rears its ugly head again.”

    The issue I raised does not, primarily at least, have to do with federalism: it has to do with democratic lawmaking – specifically the question of how our conceptions of moral justice should enter the law.

    “Indeed, we should have left it up to the states to enact civil rights legislation…”

    As I mentioned, the Supreme Court frustrated the Reconstruction-era federal civil rights enforcement statutes.  If not overtly racist, the justices at the time seem at least to have believed that the country faced a moral choice between North-South amity or civil rights enforcement.  They chose the former, and so narrowed or overbore the robust federal civil rights acts of the era.  It was not, in my view, the Court’s place to make that choice.

    It is interesting to speculate what course history might have taken if the Court had left civil rights enforcement in place: whether, for example, the Republicans would have continued to see a free and fair vote in the South as the key to electoral success and so defended civil rights more strongly, or whether the mood of the country would have doomed federal civil rights enforcement legislatively even absent judicial intervention.

    But to return to the point, Professor Heller has indeed (presuming I read him correctly) offered a moral critique of the Court’s decision.  He believes that because this decision will likely have the effect of denying some convicts access to potentially exculpatory evidence, it is morally unjust and therefore was wrongly decided.  He believes this even though this result can (and likely will) be changed by democratic enactment of statutes broadening post-conviction access to DNA evidence in the four states that haven’t yet passed such laws.

    Professor Heller might have made a legal argument – such as that the procedural guarantees he wants have been incorporated into the due process clause as evidenced by the overwhelming opinion and practice of the states.  He made the moral argument instead.

    The problem I have with such critiques is twofold: they place the Court in a role of moral arbiter that effectively denies the country the power to resolve its moral disputes democratically, and they make legal reasoning secondary to reaching the “right” moral result.

    To embrace such a view of the power and proper role of the courts reduces the judiciary to an arbitrary power.  It means that we cannot hope for justices who are servants of democracy, that we must keep legal critique from our mouths when the Court narrows or strikes down civil rights laws in a Cruikshank, that there is only left to us to shout, “Down with their morally deficient judges: we must appoint our own to the Guardian Council of the nation.”

  10. Nathan,

    So can I presume that you believe Loving v. Virginia is wrongly decided, because it “place[d] the Court in a role of moral arbiter that effectively denie[d] the country the power to resolve its moral disputes democratically”?  After all, mixed-race marriage wasn’t illegal everywhere.

  11. We can play moral gotcha all day long – I by citing cases where the Court exercised moral judgment in opposition to democracy in decisions that most now consider to have sustained injustice, and you by citing the reverse. I find moral gotcha to be a lousy form of argument, but when we set up the judiciary as an arbitrary power with a mandate for moral review never mind the legal merits, that is what we are reduced to.
    Because Virginia’s miscegenation laws were plainly intended to uphold white supremacy (only marriages involving whites fell under the ban), there is a probably a plausible argument that they violated the equal protection clause, though I have not studied the case in detail. But in answer to your broader question: Yes, if the Court acts with deference toward democratic lawmaking and, so far as possible, puts the legal merits of a case before concerns about moral justice, there will be decisions where the Court leaves to stand laws or policies that are plainly unjust.
    There will also be decisions where the Court leaves to stand laws that are just, such as the Reconstruction-era civil rights enforcement acts.
    Let’s have the moral argument in the halls of Congress and of the state legislatures. In a democracy, that’s where it belongs.

  12. Well put Nathan.  After all substantive due process has been a massive hit here hasn’t it?

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