ELECTIONS OFTEN INVOLVE CONSEQUENCESMORE SIGNIFICANT THAN MERE "BALLS AND STRIKES"
By: Michael S. Hiller
John McCain often says in the context of Supreme Court appointments that "elections have consequences." The Supreme Court's recent decision in District Attorney's Office v. Osborne convincingly demonstrates that Senator McCain is right. In Osborne, the Court ruled that law enforcement agencies have the right to prevent those convicted of crimes from obtaining access to DNA evidence for testing. The outcome in Osborne was especially notable, given that the person seeking the DNA test in that case: (i) had also requested a DNA test at trial, but was overruled by his attorney; and (ii) was willing to pay for the test himself.
As Chief Justice Roberts was surprisingly quick to acknowledge in his majority opinion in Osborne, "DNA testing has an unparalleled ability to both exonerate the wrongly convicted and identify the guilty." It stands to reason that a defendant who demands DNA testing, not once but twice, believes that the results will exculpate him rather than reinforce his alleged guilt. In other words, Mr. Osborne may very likely be innocent and yet, the Supreme Court rejected his request for access to the very evidence that would prove it. Why? The narrow 5-4 majority argued that granting Mr. Osborne's appeal could "constitutionalize" an area of law (DNA testing) that the states have already begun to address legislatively and thus unnecessarily inject the Court into matters of public policy.
In reading the majority opinion in Osborne, I could not help but recall last year's decision in District of Columbia v. Heller, in which the Supreme Court, for the first time, ruled that the Constitution protects an individual's right to own and possess handguns. Despite the popular misconception that the right existed since the early days of our Republic, the Supreme Court had, until last year, consistently ruled over the previous 200+ years that the right to bear arms, secured by the Second Amendment, applies only to a "well-regulated militia"—not individuals.
The majority opinion in Heller is notable for the absence of any discussion of"constitutionalizing" an individualized right to gun ownership. Nor does the majority in Heller express any concern that the Court's new involvement in this area would interfere with the public policy choices inherent in the pervasive legislative framework regulating guns and other weaponry that exists across the spectrum.
Despite raising seemingly different issues, the Osborne and Heller cases reflect a remarkable level of congruency: both cases involved requests for expansion of recognized constitutional rights. In Osborne, the petitioner asked the Court to extend the so-called "Brady Rule" to include a requirement that the prosecution make potentially exculpatory evidence available to the defense even after conviction; under the current Brady Rule, this requirement applies only prior to conviction. Correspondingly, in Heller, the petitioner sought a ruling expanding the Second Amendment to include an individual's right to possess firearms, as
opposed to merely statewide militia.
The Court's disparate treatment of requests for expansion of rights under the Constitution and the reasons given for the rulings issued speaks volumes about the justices and the values systems they employ in their jurisprudence. Confronted with the choice between recognizing a new constitutional right of an individual to bear arms against the prospect of introducing judicial oversight into the pervasively regulated sphere of gun possession and ownership, the majority in Heller chose the former -- a new right -- over the risks inherent in the latter. In Osborne, the Court posed precisely the same question in the context of an individual's right to test the evidence against him, but the outcome was different; in Osborne, with the rights of the accused at stake, the Court declined to recognize a new constitutional right to test conclusive evidence of guilt or innocence against the threat of judicial oversight into the newly-regulated sphere of DNA testing.
One might assume that the majorities in each case were comprised of different justices, but that would be incorrect; the same justices who expressed dire concern about the decision to introduce judicial oversight into the subject of post-conviction access to exculpatory evidence in Osborne dismissed similar apprehension on the issue of jurisprudential entanglement into the sphere of gun regulation in Heller.
Chief Justice Roberts is fond of comparing Supreme Court Justices to umpires calling "balls and strikes," but the process of adjudicating constitutional issues is infinitely more complicated. The Heller and Osborne decisions more than suggest that jurists are influenced by the values systems they bring to the Court. In these cases, the values systems held by a fivejustice majority reflect that the right to own a gun is more constitutionally significant than an entitlement to test evidence that would be dispositive of guilt or innocence. If nothing else, this confirms that Senator McCain is right: elections do have consequences. And we would be wise to recognize them.
