DISSENT JUNE 4, 2013
Some 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 decision written 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.
There was never any doubt about the purpose of this law, which is similar to laws adopted by 28 states and the federal government: to solve cold cases. This is why Justice Alito, at the oral argument, called the case perhaps the most important criminal-procedure case of the decade. The Maryland law makes its purpose explicit: “collecting and testing DNA samples” is designed to be “as part of an official investigation into a crime.” The problem, as Justice Scalia notes in his eloquent and devastating dissent, is that the Court has held repeatedly that suspicionless searches are not allowed solely on the grounds that the search might be useful to solve other crimes; instead, there has to be some independent goal (such as identification of the suspect) that can be distinguished from ordinary law enforcement. That Court precedent is why Justice Kennedy’s majority opinion barely mentions the goal of solving cold cases; instead, Kennedy pretends that the purpose of the law is simply to identify the criminal in question, much as a fingerprint would.
With rigor and wit, Scalia meticulously demolishes this made-up claim. “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,” Scalia begins. He then describes the “actual workings of the DNA search at issue here” on which the Court is “strangely silent.” Alonzo King was arrested in Maryland on April 10, 2009, on assault charges for menacing people with a shotgun. The same day, the police seized a DNA sample from him, but were prohibited by state law from placing the sample in the statewide database until his arraignment date, three days after his arrest. Four months later, after the DNA sample was tested against the federal database, King was linked with an unsolved rape and was charged with that offense, too.
“Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. And if the purpose of the law was to assess whether King should be granted bail, as the Court unconvincingly suggests, why would the state “possibly forbid the DNA testing process to begin until King was arraigned?” Scalia later adds, “It gets worse,” because King’s DNA sample wasn’t transmitted to be tested against the federal database until four months after his arrest, at which point the sample had already been entered into the state database together with information identifying King as the person from whom the sample was taken. Scalia’s conclusion is that the majority’s pretense that the Maryland law was designed to identify criminals rather than solve cold cases is a ruse.
Scalia next makes clear that DNA testing raises far greater privacy concerns than the identification system that Kennedy oddly cites as a model: “the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon.” (Kennedy neglects to note that Bertillon’s system for measuring the dimensions of the human face and body and recording them on index cards was coopted by eugenicists such as Francis Galton.) Scalia, for his part, notes that “Bertillon measures were actually used as a system of identification,” not a way of solving unrelated crimes. And he goes on to demolish Kennedy’s comparison of DNA testing to fingerprints by including a chart noting three ways in which “fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else)." Scalia also makes short work of an argument that the government introduced for the first time at the oral argument—that “the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advices.” As Scalia notes, “The Court’s proof, however, is nothing but a pair of press releases—each of which turns out to undercut this argument.”
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.
Jeffrey Rosen is the legal affairs editor of The New Republic.