In Further Defense of Scalia’s Maryland v. King Dissent

Akhil Reed Amar and Neal Katyal have a (less unequivocal than the title implies) defense of the Court’s DNA testing opinion yesterday, which of course is worth reading. It does, alas, have an unfortunate opening hook:

SOMETHING astonishing happened Monday: Antonin Scalia, the Supreme Court’s longest-serving member and one of its most conservative justices, joined three liberal justices in a sharply worded dissent arguing for the rights of criminal suspects.

As Amar and Katyal both know, Scalia’s vote and opinion were in fact distinctly non-astonishing. As Orin Kerr points out, “Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term.” As Kerr also points out, this isn’t to make Scalia out to be William Douglas; his support for the rights of criminal defendants has historically been much more sporadic than his votes this term would suggest (cf. last year’s strip-search case.) Still, this year’s string of votes is hardly out of the blue; he’s long had a civil-libertarian streak. On a Fourth Amendment case like this, Thomas and Breyer are the swing votes; Scalia is just on the left of the Court. It would have been significantly more surprising had he joined the majority.

That misleading opening aside, Amar and Kaytal advance an argument I agree with to a point. Yes, it goes too far to say that history clearly establishes the categorical rule that investigatory searches require a warrant based on probable or exigent circumstances. I’m not an originalist, so even if it did this wouldn’t settle the question unless the text of the Fourth Amendment explicitly foreclosed Kennedy’s position, which I agree it doesn’t. While the history is worth considering, Scalia’s argument needs to be defended on its own merits — which I’m still inclined to do. Let me raise a couple of further points.

First of all, Amar and Katyal skate over the bad faith underlying Kennedy’s argument. It’s not just Scalia who relied on the assumption that suspicionless searches for purely investigatory purposes are categorically unconstitutional; the majority also relies on this argument, which is deeply rooted in the Court’s precedents. The problem, as Scalia’s dissent demonstrated beyond any possible dispute, is that the DNA search in this case was clearly not taken for the purposes of identification but for the purposes of investigation. Kennedy could have written an argument holding the distinction irrelevant and focusing purely on whether the investigatory search was “reasonable.” Could have, but didn’t, and this seems important.

But let’s ignore the fact that Kennedy made claims about the nature of the search that are demonstrably false. Is the categorical distinction between investigatory and identifying searches worth preserving? I think it is, yes. Consider the 2009 case mentioned by Scalia in a footnote. If warrantless searches for purely investigatory purposes are permissible once someone has been arrested, I’m not sure why a car (and, for that matter, a home) can’t be searched without a warrant exigent to an arrest. Are searches of property less intrusive than searches of one’s body? That’s not an easy case to make. And, indeed, every member of yesterday’s majority except Thomas voted to uphold the car search.

Giving the police the constitutional authority to conduct warrantless searches for investigatory purposes is particularly problematic given the broad discretion that police have to arrest people, which evidently requires a much lower standard than convicting someone does. (Granted, the majority suggests that the power applies only when people are arrested for “serious” crimes; let me just say that I don’t trust lower courts to apply this standard stringently, and nor do I see this qualification as being logical were we to abandon the categorical prohibition on suspicionless investigatory searches.) This is particularly important given that random arrests are not, to put it mildly, evenly distributed along racial and class lines. As Adam Serwer notes, the majority opinion creates further incentives to move beyond stop-and-frisk to actual arrests: a “stop, frisk and swab” regime.

The categorical prohibition on suspicionless searches for purely investigatory purposes is not, strictly speaking, required by the text of the Fourth Amendment. But (as both of yesterday’s opinions make clear) it has a strong basis in the Court’s precedents and also a strong relationship to the text and purposes of the Fourth Amendment. It’s worth preserving.