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Hullabaloo


Monday, June 03, 2013

 
When Scalia's right he's really right

by digby

So the Supreme Court narrowly decided today that the government has a right to seize your DNA upon arrest. According to Anthony Kennedy, who wrote the majority opinion, it's all about the simple "intrusion" of the cheek swab, not the fact that the government is collecting the most personal information about its citizens even though they've not been convicted of a crime.

But the big surprise is that the scathing dissent issued from the bench today was from none other than Antonin Scalia:

"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."

Scott Lemieux comments:

The key to Scalia's absolutely devastating dissent is the point that the balancing test employed by the majority is inappropriate, because suspicionless searches are never permitted by the Fourth Amendment as ends unto themselves. This is particularly disturbing because, in the long run, such balancing tests tend to be employed with an anvil on the state's side of the scale. The majority's attempt to disown these potentially disastrous future consequences are highly unconvincing. As Scalia puts it, "[t]he Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster."

Yes, I'm sure the authorities would never use such information in any nefarious way. There's no need to worry our pretty little heads about it.

Lemieux also makes a good point about Stephen Breyer, who voted with the majority in this case:
As many readers will always be aware, the Clinton appointee Stephen Breyer is something of a throwback to Kennedy-era liberalism. On civil rights and national power issues, he's outstanding. But on civil liberties issues, he too often lets "pragmatism" interfere with the Bill of Rights. This is another case in point. Breyer is certainly not as bad as Alito and Roberts on civil liberties questions, but he's much worse than a Democratic nominee should be.
I'm afraid that when the political scale is tipped so far to the right it's a good idea to watch your back anytime you hear the word "pragmatic." It's rarely good for the home team...

The good news is that Obama's nominees Kagan and Sotomayor have been very good on these issues. But with "pragmatists" like Breyer unwilling to hold the line, it's not helping much.

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