Court’s DNA Ruling Shows Antonin Scalia Isn’t All Bad

Believe it or not, Antonin Scalia doesn’t always suck.

Yes, the conservative Supreme Court justice has plenty of retrograde ideas, and yeah, he’d like to read the Constitution as if time stopped somewhere around 1789. But his prickly, eccentric readings of the law of the land sometimes—more often than you’d think, in fact—bring him down on the civil libertarian side of a case.

It happened again this week. Scalia sided with the minority in Maryland v. King, in which the court ruled that police can take DNA samples from anyone they arrest for a “serious” crime—then check to see if that genetic material matches evidence from unsolved “cold cases” awaiting resolution around the country.

Scalia’s dissent, read from the bench, was blistering and righteous.

“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,” he wrote. “That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment .”

The problem? If you’re ever arrested—for any reason, whatsoever—the court’s ruling in the case will let the government start to collect deeply personal, intimate information about you, and keep that information forever. It’s a process that is all too likely to be abused:

The (court majority) 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].” … I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” 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 concluded:

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.

And yeah, that’s kind of a kinky note to end on. That’s Scalia for you. And it’s not that unusual: One observer noted that Justice Scalia has consistently been on the side of defense attorneys—and not prosecutors—when it comes to Fourth Amendment cases this term. “Defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing,” Orin Kerr wrote at The Volokh Conspiracy, a legal blog.

In this case, Scalia’s dissent puts him on the side of the ACLU. “A single police officer’s decision to arrest a person for a minor offense should not justify this intrusion into genetic privacy,” the civil liberties organization said after the ruling.

Yes, Scalia will do something or say something soon to outrage me and other liberal civil libertarians. But we might as well acknowledge: He’s not all bad all the time.