Monday the Supreme Court issued a 5-4 ruling in Maryland v. King, which Justice Alito called one of the most important law enforcement decisions in decades. The majority opinion held that the police can take the DNA of anyone who is arrested of a “serious” crime even if not convicted. In his dissenting opinion, Justice Antonin Scalia quite clearly showed his discontent with the decision, taking an almost mocking tone at times.
Alonzo King, the defendant, was convicted of rape in a decision based in large part on a DNA sample taken from him during an unrelated booking, which the defense argued constituted unreasonable search. While all 50 states required the collection of DNA after conviction only about half can do so after only an arrest. As the majority opinion explains, proponents believe that this practice will help solve cold cases, and should be treated no differently from tacking a fingerprint.
Scalia responded to this comparison with strong alliteration, accusing the majority of “tax[ing] 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.”
That Scalia chose to read the dissenting opinion aloud shows how seriously flawed he believes this decision to be. Speaking to his fear of unchecked police power in a fiery and sometimes mocking tone, Scalia drew a comparison to Hobbes' Leviathan: "It may be wise, as the court 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."
Scalia joined three liberal justices in the minority, with the court's fourth liberal judge, Justice Stephen Breyer, joining Roberts and the conservative majority.
The majority opinion explained that due to “DNA testing’s unparalleled ability both to exonerate the wrongly convicted and to identify the guilty … it has the potential to significantly improve both the criminal justice system and police investigative practices… the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.”
The majority opinion continues by explaining that only in cases of “serious offense” should an arrestee have his or her DNA taken, an ambiguity Scalia deemed unacceptable: “The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for 'serious offense[s].' . . . 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.”
Bringing his line of argument to a close with a reference to the Constitution and America’s independence from the British crown, Scalia warned with his trademark dramatics of the Pandora’s Box the court’s ruling had opened: “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.”
While it is unusual that Scalia would join in an opinion with the court's liberal wing, his decision comes from his “originalist” interpretation of the Constitution, one that understands the motives of our Founding Fathers. In this case Scalia's opinion drew on the historical truth that Americans despised the British use of "general warrants," those not grounded in some particular offense. Drawing allusion to those warrants, Scalia explains that permitting the use of the DNA taken under questionable circumstances for use in unrelated crimes is contrary to the Fourth Amendment. Although the SCOTUS ruling put Scalia in the minority, no one can say he did not go out kicking and screaming.