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In Supremes' DNA decision, Breyer and Scalia switch sides--again

Maryland v.
Supreme Court Justice Antonin Scalia. (Photo by Charles Rex Arbogast/AP Photo/File)
Supreme Court Justice Antonin Scalia.

Maryland v. King, today’s blockbuster Supreme Court DNA decision, shines a spotlight on a fact too often obscured in coverage of politically-polarized Washington: the high court’s votes don’t always track along party lines.

That’s worth keeping in mind as court watchers await historic decisions on gay marriage and affirmative action, both slated to come down in the next three weeks.

The court in King was addressing what one justice called “perhaps the most important criminal procedure case this this court has heard in decades”: can police take DNA swabs from arrestees just as they take fingerprints? By a 5-4 vote, the justices decided that the answer is yes.

But the split was not between law-and-order Republicans versus pro-defendant Democrats. Instead, Clinton appointee Stephen Breyer joined four Republicans to uphold warrantless DNA testing. Meanwhile, Antonin Scalia—Reagan appointee and longtime scourge of liberals—joined three Democratic appointees in siding with the defendant.  And his dissent was a fiery screed that attacked his conservative colleagues for a “vast” and “scary” ruling that, he said, would have shocked the Founding Fathers.

Surprising? Actually, no.

When it comes to Fourth Amendment cases—in other words, cases about limits on police power to search people and property—Breyer frequently sides with the police, and Scalia frequently votes against them. In fact, as one commentator pointed out, that’s been the lineup in every divided Fourth Amendment decision from the court since its 2012-2013 session began last October.

Nor is that trend confined to search-and-seizure cases. In recent years, Scalia has voted to reverse convictions for murder, drug dealing, and drunk driving in cases involving issues like the right to a lawyer and the right to confront one’s accusers in court. That has produced blog headlines like, “Justice Scalia: The criminal defendant’s best friend?”

These cases aren't deviations from either Breyer’s or Scalia’s usual philosophies. They show, instead, that Supreme Court votes are far more complicated  than pure politics. For Scalia, in particular, criminal cases are not about politics at all. They're about the historic meaning of the Constitution.

That concern helps explain his vote in Monday’s DNA case. (Disclosure:  I helped author a friend-of-the-court brief supporting the government side, which prevailed.)

The majority opinion, written by Justice Kennedy, was steeped in the practicalities of law enforcement. Kennedy wrote that when someone is arrested for a “serious crime,” the police can swab his cheek for DNA without a warrant, just as they take fingerprints. And they can compare that DNA sample against a national database to see if it matches DNA from past crime scenes. That search is constitutional, Kennedy wrote, because the government’s interests in the DNA comparison—for example, determining whether the arrestee is dangerous, and whether he is likely to flee if released on bail—outweigh the intrusion of asking him to open his mouth for a cheek swab.

Those law-and-order practicalities, however, were beside the point for Scalia. For him, the case was simple: the Founding Fathers would never have tolerated a regime where police can search a person—even an arrestee—for evidence of a crime when there’s no reason to suspect that he committed it.

That, Scalia wrote, was the difference between DNA collection and fingerprints. Police take fingerprints primarily for identification, he explained. That’s acceptable because police must identify those they arrest. DNA, on the other hand, is collected for one reason only: “to solve unsolved crimes.” That is not acceptable, he wrote, because it’s exactly what the Fourth Amendment has always forbidden: a search of a person for evidence of a particular crime without any suspicion that he was the perpetrator.

Scalia recognized that the majority’s decision would “have the beneficial effect of solving more crimes.” But that wasn’t enough for him. After all, he wrote, “so would the taking of DNA samples from anyone who flies on an airplane,” applies for a driver’s license, or attends a public school. “I doubt,” he wrote, “that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Scalia’s deference to the Founding Fathers didn’t carry the day. Under the majority’s decision, police can now take DNA swabs from anyone arrested for a “serious offense.”

The next question courts will face: should the line hold there? Scalia suggested that it won’t, and that courts soon will authorize police to take DNA from those arrested for any crime, serious or otherwise. “Make no mistake about it,” he wrote. “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.”

That scenario could create another case that would wend its way to the highest court--and if Justice Scalia is still there, we can confidently predict his vote.