Does the judiciary need to move in and "construe" the Constitution to provide remedies to problems, with the details to be filled in by judges, when the other branches of government are already moving forward to address the issue? A bare majority of the Supreme Court thinks not. From today's decision in District Attorney v. Osborne:

DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure--usually but not always through legislation.

Against this prompt and considered response, the respondent, William Osborne, proposes a different approach: the recognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under 42 U. S. C. §1983, not within the state criminal justice system. This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. There is no reason to constitutionalize the issue in this way. Because the decision below would do just that, we reverse.

It is also important to note that Osborne could have had a more discriminating DNA test done at trial. His lawyer decided not to because she believed that further testing would only further inculpate Osborne, not exculpate him. (That sounds a lot like the Brown case, to be argued in October. CJLF brief here.) Osborne now claims he asked the lawyer for the test, but she has no recollection of such a request.

Coverage: Mark Sherman for AP, Lyle Denniston on SCOTUSblog, David Savage in the LAT, David Stout in the NYT