Analysis - With trademark vigour, U.S. Justice Scalia dissents in DNA case

WASHINGTON Mon Jun 3, 2013 8:39pm BST

U.S. Supreme Court Justice Antonin Scalia speaks at a Reuters Newsmaker event in New York September 17, 2012. REUTERS/Brendan McDermid

U.S. Supreme Court Justice Antonin Scalia speaks at a Reuters Newsmaker event in New York September 17, 2012.

Credit: Reuters/Brendan McDermid

WASHINGTON (Reuters) - Justice Antonin Scalia can seem among the most predictable of the nine U.S. Supreme Court justices, voting conservative and regularly siding with law enforcement over individuals. But then comes an exception like Monday, when Scalia launched a fiery dissent from the bench to a decision permitting police to take DNA swabs from people arrested.

The nine justices divided 5-4 in one of the most closely watched criminal disputes of the term, declaring that the collection of DNA does not violate the U.S. Constitution's protection against unreasonable searches.

Writing for the minority, Scalia was joined by three liberal justices. But his 11-minute oral statement - a departure from the usual practice in which only the majority opinion is read aloud - was classic Scalia. It relied on his "originalist" interpretation of the U.S. Constitution and employed forceful rhetoric as clever as it was heated. He declared that the majority's rationale "taxes the credulity of the credulous." An adroit writer, he sprinkled in words from decidedly non-legal contexts, such as "hash" and "genuflecting" and mixed in references to American revolutionary Patrick Henry and the biblical Leviathan.

The latter came at a moment of high drama in the white marble courtroom when Scalia concluded: "It may be wise, as the court majority obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection. I dissent."

Only a few times each term does a justice read a dissenting opinion aloud. It typically happens in a close, hard-fought case, when a dissenter is especially angry and wants to call attention to a decision he or she believes especially unwise. Since his appointment to the bench in 1986 by Republican President Ronald Reagan, Scalia has relished the forum. In an early dissent, to the June 29, 1988, decision in Morrison v. Olson, Scalia went on for nine minutes as he famously objected to a law allowing judges to appoint special prosecutors and wrote in his opinion, "Frequently, an issue of this sort will come before the court clad, so to speak, in sheep's clothing ... But this wolf comes as a wolf."

SEVERAL ZINGERS

Monday's declaration in Maryland v. King contained several zingers and lapsed into a mocking tone. As is typical when any dissenter reads aloud, the other eight justices looked forward showing no change in their emotions. Justice Anthony Kennedy, who wrote the majority opinion and has felt the sting of Scalia's dissents many times, sat stone-faced, solemn.

Nor did Kennedy, in his written opinion, respond to Scalia's objections; he instead emphasized the value of DNA collection to law enforcement and compared the cheek swab to routine fingerprinting.

The decision is a boon for states and the federal government relying on interconnected DNA laboratories nationwide to solve crimes. All 50 states already require the collection of DNA from felony convicts. At issue was the collection from arrestees. The 5-4 decision fell along largely ideological lines, with conservatives making up most of the majority. The crucial fifth vote came from Justice Stephen Breyer, a 1994 appointee of President Bill Clinton who tends to vote liberal but occasionally tacks to the right on matters of criminal law.

Neither Breyer nor any other justice beyond Scalia and Kennedy issued separate opinions, or spoke from the bench.

UNREASONABLE SEARCH?

In Monday's case, Alonzo King had been arrested in Maryland on assault charges. A DNA sample was taken from inside his cheeks with a cotton swab as part of routine booking. It matched the DNA found on a 2003 rape victim, and King was eventually convicted of rape. On appeal, he argued the cheek swab was an unreasonable search.

Scalia, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, agreed the search was unreasonable because the swab was taken when King was not suspected of the earlier offense. Scalia said that violated a core Fourth Amendment principle that police may not conduct a search unless there are reasons to believe that evidence will be found.

While Scalia's stance may not have been obvious, given his conservative reputation and usual latitude for police searches, it is a piece of a lesser known Scalia pattern in some areas of criminal law. He has, for example, joined with liberals for firm rules on the Constitution's guarantee that defendants be able to confront their accusers, even in situations involving sensitive crime victims.

In those cases and the DNA dispute, Scalia returns to his view that the Constitution should be interpreted as it was understood when it was written in the 18th century. He declared on Monday that Americans despised the British use of "general warrants," those not grounded in some particular offense. He said the majority turned away from the roots of the Fourth Amendment by permitting arrestees to be subjected to "suspicionless searches" primarily to solve unrelated crimes.

Scalia also complained that the ruling lacked a limit on the definition of "serious offenses." On that point, Scalia closed with his signature dramatic exaggeration.

"Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason. This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane ... (or) taking your children's DNA when they start public school."

(Editing by Howard Goller and Cynthia Osterman)

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