Disappointed! (With a Helping of Credit Where Due)

Yesterday's decision by the Supreme Court in Maryland v. King is an exercise in rationalization. A 5-4 majority of the Court found that "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” The majority described the procedure as "quick and painless," and justified by "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” The majority explained that this practice “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

Except, of course, that it is. Because we all know--and indeed the facts of the case squarely presented--that the purpose of the DNA swab isn't to identify the prisoner; as Justice Scalia made clear in his superb dissent, the purpose of the DNA swab is to use the DNA to investigate whether the prisoner may have been guilty of other crimes of which the State has no reason to suspect him of having committed. Scalia refuses point-blank to accept the argumentum excrementum taurorem that the swab is solely for identification purposes:

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

I have long maintained that from 1986 to 2000, Scalia was "often an ornament of the Court," having by and large been genuinely engaged in a principled effort at an originalist jurisprudence--not one I often agreed with, but intellectually consistent and worthy of respect. His return to form is most welcome.

As to Justice Breyer joining this disingenuous majority opinion, I'll outsource my commentary to Kevin Kline:



Kidding aside, in the second edition of First Amendment, First Principles (2004), I noted the disappointing tendency of Justice Breyer to explicitly balance away constitutional rights in favor of his preferred policy outcomes. This is just one of a series of his living down to this description, I'm afraid.