Thomas, J., dissenting
acts or omissions of the district attorney.
The majority permits Reed to evade that problem by framing his Article III injury as the mere lack of access to his desired evidence, independent of any alleged due process denial. See ante, at 3. But, if framing Reed’s injury that way helps with traceability, it only worsens his redressability problem. Suppose that the District Court accepted Reed’s due process arguments and issued his requested relief: an abstract declaration that the interpretation of Chapter 64 that the CCA applied in his case is unconstitutional. How, exactly, would that redress Reed’s injury of not having the evidence tested? The CCA’s Chapter 64 judgment would remain untouched; Reed would have obtained an opinion disapproving its reasoning, but without any appellate “revis[ion] and correct[ion]” to disturb its finality. Bollman, 4 Cranch, at 86. Nor would a declaration that the CCA’s construction of Chapter 64 was unconstitutional imply anything about the district attorney’s duties or liabilities.
The majority asserts that such a declaration would cause “ ‘a significant increase in the likelihood’ ” that the district attorney would grant Reed’s desired testing. Ante, at 3 (quoting Utah v. Evans, 536 U. S. 452, 464 (2002)). But the district attorney has made clear that he does not understand Reed’s requested relief to “require any change in conduct” from him and that it is not “likely to bring about such change.” Brief for Respondent 38–39. If the majority thinks the district attorney is wrong about that, it would only be fair to explain exactly what change in conduct would be legally required of him if Reed prevailed on his due process claim. The majority fails to do so.[1]
- ↑ This failure will have troubling consequences if Reed’s claim ever progresses beyond the pleading stage. To survive summary judgment, Reed cannot “rest on mere allegations, but must set forth by affidavit or other evidence specific facts” showing that his requested relief will make it likelier that he obtains the desired testing. Clapper v. Amnesty Int’l
