Justice Scalia: “The Fourth Amendment Must Prevail”

Can a person arrested–but not convicted–for a crime be made to give up a DNA sample which will be used to see if they have committed an unsolved crime? Yes said the United States Supreme Court last week, by a narrow 5-4 decision.

In a week that revealed unprecedented attacks on American privacy, the Supreme Court leaped on top of the pile. It  held (Maryland v. King) that a Maryland law that allows bucal swabbing upon arrest is essential for identification of those arrested, and may be compared with samples left at the scene of unsolved crimes, regardless if the person was never suspected of the unsolved crime.

Justice Antonin Scalia
Justice Antonin Scalia

Some Supreme Court followers may be surprised to learn who the most vigorous defender of privacy was: Justice Antonin Scalia. Scalia is an enemy of the unreasonable search and wrote a blistering dissent. Here are a few excerpts:

“Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law-enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. 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.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, (suspicionless search of a car permitted upon arrest of the driver) will some day be repudiated.”

Dissenting opinion, Justice Antonin Scalia, Maryland v. King, 2013 WL 2371466, No. 12–207. Decided June 3, 2013.

For a description of the oral argument in Maryland v. King, read Adam Liptak’s New York Times article.

For another viewpoint, read an analysis by Yale Law Professor Akil Reed Amar and Neil Katyal, “Why the Court Was Right to Allow Cheek Swabs.”


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