Scalia Gets It Right

The collection of DNA evidence is a powerful crime-control tool, but it also has the potential to lead to greater invasions of privacy. Today, a bare majority of the Supreme Court held in Maryland v. King that the former considerations should outweigh the latter. The Court's ruling both creates important Fourth Amendment law and illustrates some important facts about the personnel on the Court. The question at issue in Maryland v. King is whether DNA information could be collected (via a cheek swab) from someone arrested for—but not convicted of—an offense. The facts of the case certainly make a superficially compelling argument for permitting the practice, as DNA evidence collected from Alonzo King was used to identify him as a suspect in a rape case. But the fact that the policy "worked" in this particular case is not, in itself, an argument that the practice of collecting DNA information from people who haven't been convicted of a crime is a "reasonable" search and seizure under the Fourth Amendment. The Court's justifications, however, are shaky.

The Court's majority opinion, written by Justice Kennedy (and joined by Chief Justice Roberts and—in descending order of disappointment based on their past records—Justices Alito, Breyer, and Thomas), turns on a key premise. In attempting to establish whether taking DNA evidence from a suspect without his or her consent is constitutional, Kennedy balances the state's interest in DNA collection against the individual's privacy interest. Kennedy argues, without exception, that the states' interest in collecting the evidence is compelling. The more contestable premise is Kennedy's assertion that "the intrusion of a cheek swab to obtain a DNA sample is a minimal one." The problem here, though, is that the crucial intrusion of privacy comes not so much the cheek swab as the detailed data the swab collects. When you consider the identifying information the swab obtains, it is difficult to maintain that the violation of privacy is minimal, and without this premise Kennedy's argument collapses. Kennedy's contention that the state's primary interest in collecting DNA samples is "so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody" is scarcely more credible. As in this case, the state's primary interest is in solving future crimes, not in identifying suspects, which can almost always be done by less intrusive techniques like fingerprinting even when a suspect is not carrying I.D.

This point, and many more, is made by a tour de force dissent written by Justice Antonin Scalia (and joined by Justices Ginsburg, Sotomayor, and Kagan.) The effect of the Court's decision is to search people for crimes for which it has no probable cause to do so. And, as Justice Scalia notes, this cannot be consistent with the Fourth Amendment:

"The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work."

The key to Scalia's absolutely devastating dissent is the point that the balancing test employed by the majority is inappropriate, because suspicionless searches are never permitted by the Fourth Amendment as ends unto themselves. This is particularly disturbing because, in the long run, such balancing tests tend to be employed with an anvil on the state's side of the scale. The majority's attempt to disown these potentially disastrous future consequences are highly unconvincing. As Scalia puts it, "[t]he Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster."

In addition to continuing the Supreme Court's longstanding trend of diluting Fourth Amendment protections, the Court's opinion also illustrates three important facts about the Court:

The "Scalito" term was an insult—to Scalia.

Because of his more moderate tone, a number of media court-watchers thought that Samuel Alito would be the more moderate alternative to Scalia who liberals should have been grateful for, given the alternatives. This has proven to be completely wrong in practice (not surprisingly, as it was based on no evidence whatsoever and contradicted by a great deal.) Scalia, as this case reveals, has a longstanding libertarian streak in some civil liberties cases that is wholly absent from Alito's record, and Roberts has been almost as terrible. More disappointing in this case is Justice Thomas, who sometimes votes with Scalia and the Court's most liberal members, and in this case could have swung the decision the other way. Particularly embarrassing for the Court's allegedly most principled "originalist" is that he joined without comment a majority opinion that made no serious effort to rebut Scalia's extensive historical analysis of the purpose of the Fourth Amendment.

Breyer is all wet.

As many readers will always be aware, the Clinton appointee Stephen Breyer is something of a throwback to Kennedy-era liberalism. On civil rights and national power issues, he's outstanding. But on civil liberties issues, he too often lets "pragmatism" interfere with the Bill of Rights. This is another case in point. Breyer is certainly not as bad as Alito and Roberts on civil liberties questions, but he's much worse than a Democratic nominee should be.

Obama's nominees have been solid.

There was some concern at the time of their nomination that Sonia Sotomayor (a former prosecutor) and Elana Kagan (a nearly blank slate in terms of specifics about her record) could follow Breyer's path on civil liberties. But so far these concerns appear to have been unfounded, and this case is the strongest example yet. There are many serious criticisms to be made of Obama's record on civil liberties issues, but his nominees have so far proven to be very strong on civil liberties issues. The performance of Sotomayor and Kagan so far (compared with Alito and Roberts on the other hand) is evidence for Mark Graber's theory that we should expect Supreme Court nominees to reflect a more consistent set of values based on the party than appointed them.

The good news about Obama's nominees, however, is cold comfort in light of the fact that Breyer flipped to the reactionary side. The curtailment of Fourth Amendment rights announced by the court today may have led to a "good" outcome in this particular case. But the ends don't justify the unconstitutional means, especially since the "good" outcome may well be counterbalanced by many negative downsides as personal privacy enjoys less and less protection against an increasingly intrusive state.


Wait. I must be missing something. Was the question in this case not whether or not the police can take a cheek swab from someone arrested with reasonable suspicion to being the rapist in order to verify or reject that suspicion based on comparison with the DNA from the semen collected from the victim?

If that's the case, arguing that the suspect has the right to refuse and hope the notoriously ineffective trial for rape by circumstantial evidence and he-said/she-said is just preposterous. On top of that, this kind of evidence is a great way to avoid many, often racist or classist, wrongful convictions. Though I suppose someone who knew they weren't involved at all in the crime in question would be more than happy to disprove that fact by offering their own DNA...

Is this case giving some "stop-and-frisk" type cheek swabbing rights to the police? Cause otherwise, this article is backwards I can barely understand how a sane person (note that DOESN'T include Scalia) could make that argument.

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I was writing about this earlier, but one thing I thought was troubling was that Scalia's invasiveness argument seems to be based not on the information obtained (a DNA profile) but on the manner in which it is taken (an oral swab). Civil liberties supporters shouldn't be too excited, as testing methods are becoming less and less invasive every day, and it seems Scalia would have no problem with the police using a different technique.

While Scalia's dissent was powerful (and the majority opinion weak), I can't help but think that his argument is a bit shaky. He says that suspicionless searches are never allowed if the purpose is crimefighting, and that fingerprinting is okay because it is related to identification. But how often is fingerprinting really used to identify a person in custody, and how often is it used to identify a suspect who has committed a crime but otherwise eluded capture? I don't see much distinction between keeping a DNA database to match against oral swabs of future arrestees and keeping a fingerprint database to run against unknown prints at a crime scene...

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