Jeffrey Rosen for The New Republic: A Damning Dissent: Justice Antonin Scalia was at his finest in criticizing the Court over its approval of DNA swabs

June 4th, 2013

The New Republic
by Jeffrey Rosen
June 4, 2013

Some of Supreme Court Justice Antonin Scalia’s greatest opinions have involved his passionate defense of the Fourth Amendment right against unreasonable searches and seizures. It was Scalia who held, for a majority of the Court, that police need a valid warrant before they can use thermal imaging devices on a suspect’s home, or track his movements 24/7 for a month using a GPS device. Scalia has also written memorable dissents in defense of privacy, including his denunciation of warrantless drug testing for customs employees as “a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”

Yesterday, Scalia added to this impressive list by writing not only one of his own best Fourth Amendment dissents, but one of the best Fourth Amendments dissents, ever. In a 5-4 decision written by Justice Anthony Kennedy, who was joined by Chief Justice John Roberts and justices Samuel Alito, Clarence Thomas, and Stephen Breyer (who often sides with the conservatives in Fourth Amendment cases), the Court upheld Maryland’s DNA Collection Act. That law allows the police to seize DNA without a warrant from people who have been arrested for serious crimes and then plug the sample into the federal CODIS database, to see if they are wanted for unrelated crimes.

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