Scalia dissents from conservative bloc in Supreme Court DNA decision

Yesterday the U.S. Supreme court ruled in a 5-4 decision that the collection of DNA after arrest (but without an actual conviction for any crime) does not violate the U.S. Constitution’s protection against unreasonable searches. Writing the dissenting decision, Scalia also gave an 11-minute oral statement in which he cited the founding fathers.

“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 also noted that pre-conviction DNA collection is a slippery slope.

“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.”


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15 thoughts on “Scalia dissents from conservative bloc in Supreme Court DNA decision

  1. Setting aside the fact that the ruling itself has major repercussions & poses a considerable threat to liberty…

    Purely for sport, I often find it amusing when Supreme Court Justices confound expectations & in particular, when they take the opposite side that a simple pigeon-hole view of them would suggest (especially when it is in fact consistent with an underlying principle).

    I guess, on the plus side, in about 12-14 generations, we’d no longer have to worry since at that point, our relatives share no more similar genes to us than a total stranger does.

  2. Justice Scalia wants to allow foreign powers to influence U.S. legislation (via Citizen’s United) but he doesn’t want individual citizens to become too well documented…as long as they behave themselves.

  3. Registering firearms is a slippery slope, but no one has a problem with this.

    1. Universal background checks and firearm registration aren’t the same thing. I haven’t heard many mainstream folks arguing for a gun registry.

    1. An ancestor of mine was hung and quartered in the town square for leading a protest march against a British governor who ruled without consideration of colonial basic rights. A Captain Benjamin Merrill in 1771 after the Battle of Alamance. For most of the revolutionaries it was simply a matter of survival.

      I would appreciate Justice Scalia’s vote much more if it had resulted in reversing the ultimate decision. As it now stands, I consider it nothing more than propaganda posturing.

      1. Cat, how do you think it is propaganda posturing? Scalia always strikes me as someone who genuinely stands for his convictions and tells it like it is. Why do you mention no posturing on the part of Breyer, who is ultimately to blame for the majority vote.

        1. Forgot, My skeptical nature tells me that if Breyer hadn’t voted the way he did, Justice Scalia would have come down on the majority side.

    2. And validates the 30 or so states who have already been doing it for years.

  4. Zach – That mainstream folks are not arguing for a national gun registry is unfortunate and indefensible. It is a prudent measure.

    Mark E. Bye – There’s nothing slippery slope about a gun registry. There’s very little slippery slope to anything with rational governance that prioritizes the public good.

    In general – As to Scalia’s Libertarian construction that law enforcement in America can be cogently analogized to independence from the British isn’t a rational comparison. The Constitution was devised due to crippling weaknesses in American governance post-Revolution.

    Of course the Framers kept British governance to the fore in drafting the Constitution, but Scalia doesn’t seem to be too aware of the original construction of the Constitution when advancing his own personal “originalist” construction of the Constitution. Scalia has never demonstrated that he has the foggiest idea of what the Framers might or mightn’t do. Quite the contrary, he continually indicates that he doesn’t. Unless, of course, he does have a very good idea, but has instead used his knowledge to subvert the system the Founders created for his own right wing extremist agenda. Hard to say which it might be.

      1. Depends what is meant by a national gun registry. What does that mean? What point would it serve and what would it accomplish? A public registry would probably encourage MORE gun ownership. If a criminal knows everyone on the block has a gun but me, I’m going out to buy a gun now even if I wasn’t so inclined before!

        How about a national registry on what church people go to or a national registry of what magazines they subscribe to. I don’t see HOW that would infringe on the first amendment.

  5. Another good title for this post would have been “Stephen Breyer sides with the conservatives”. What’s up with that?

    1. I guess the decision was just full of surprises. From what I’ve seen, Breyer tends to be a little to the right when it comes to criminal justice issues.

    2. Nemo, I was thinking the same. It wouldn’t have been a decision of the majority without Breyer, which seems more relevant.

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