Scalia: Trying to protect the Fourth
A damning dissent: Scalia’s dissent for the ages in the DNA caseSome of Supreme Court Justice Antonin Scalia’s greatest opinions have involved his passionate defense of the Fourth Amendment right against unreasonable searches and seizures. It was Scalia who held, for a majority of the Court, that police need a valid warrant before they can use thermal imaging devices on a suspect’s home, or track his movements 24/7 for a month using a GPS device. Scalia has also written memorable dissents in defense of privacy, including his denunciation of warrantless drug testing for customs employees as “a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”
Yesterday, Scalia added to this impressive list by writing not only one of his own best Fourth Amendment dissents, but one of the best Fourth Amendments dissents, ever. In a 5-4 decisionwritten by Justice Anthony Kennedy, who was joined by Chief Justice John Roberts and justices Samuel Alito, Clarence Thomas, and Stephen Breyer (who often sides with the conservatives in Fourth Amendment cases), the Court upheld Maryland’s DNA Collection Act. That law allows the police to seize DNA without a warrant from people who have been arrested for serious crimes and then plug the sample into the federal CODIS database, to see if they are wanted for unrelated crimes.
...
Scalia concludes his inspiring dissent by noting the tremendous stakes in the case, and the dangers posed by the Court’s uncritical approval of DNA testing of arrestees—a decision that will affect the “nearly one-third of Americans [who] will be arrested for some offense by age 23.” He predicts that although “the Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver”—namely, that DNA testing will be limited to those arrested for serious crimes such as felonies—the logic of the decision would, in fact, allow DNA tests to “identify” those arrested for traffic offenses. He then directly addresses American citizens, in rousing words that he read from the bench: “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” And he ends with one of his most memorable images: “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
It is regrettable that five members of the Supreme Court upheld state and federal DNA databases based on a premise that Scalia reveals to be a fiction: that the purpose of DNA testing is to identify suspects rather than to solve cold cases. Scalia notes that the Court’s broad holding—that DNA can be seized from arrestees—was “quite unnecessary,” since everyone concedes that King’s DNA could have been seized as a result of his conviction for second-degree assault. The 22 remaining states that don’t collect DNA from arrestees are likely to do so now, and the threats to privacy will only grow. But it is inspiring to see Justice Scalia’s wit, passion, and devotion to constitutional principle being deployed so effectively on behalf of American liberty.
Reply With Quote
Originally Posted by fj1200
