Today in the War on the Fourth Amendment

When a Supreme Court majority wants to reach an outcome but the argument on behalf of said outcome is particularly indefensible, it’s likely that the opinion will be handed off to Anthony Kennedy, like radioactive waste. Today’s task for Kennedy was to hold that suspicionless searches without exigent circumstances could be consistent with the Fourth Amendment, and his opinion was exactly the atrocity you’d expect. His approach was to claim that DNA samples were taken from a suspect not for investigatory purposes but for identification, an argument that’s ridiculous on its face and even less tenable when you look at the facts. Since it was a Fourth Amendment case Scalia voted correctly, but Breyer and Thomas joined with the Court’s more consistent authoritarians to swing the case to the dark side.

Read the whole etc., but I’d also like to highlight the conclusion of Scalia’s unanswerable dissent:

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 air plane (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.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.

I would rather focus on our values and liberty than those of “the proud men” who wrote the Bill of Rights, but otherwise this is completely right. If this decision stands, we might as well just collect DNA samples from everyone at birth and be done with the pretense that we’re applying the Fourth Amendment to DNA collection. The originalist language is useful, though, because it highlights what a particular embarrassment it was for Thomas to have joined Kennedy’s opinion without comment. I’d love to hear the “originalist” justification for the proposition that you can conduct a search of one’s body without suspicion (let alone warrant) or exigent circumstances as long as the information collected is really useful.