Antonin Scalia, civil libertarian?

Antonin Scalia, the longest-serving current U.S. Supreme Court justice, breezed through his confirmation hearings in 1986 after the bruising fight over William Rehnquist's nomination as Chief Justice. No one wanted a repetition of the hearings over Rehnquist, which opened up the associate justiceship he had vacated. Scalia, who always carries enough rope to hang himself several times over if presented with a gallows, was barely asked about his law license. His confirmation vote was 98-0.

Scalia has been a one-man Constitutional house of horrors ever since. He thinks the Miranda rule, generally acknowledged as one of the cornerstones of the modern Fifth Amendment, was a gross judicial overreach. He thinks it's OK to execute 15-year-olds and mental basket cases— the Constitution, after all, doesn't specify an age or IQ minimum.

You didn't like the Court's "reasoning" in Bush v. Gore, which handed the presidency to the likely electoral loser? "Get over it," Scalia advises. Detainee rights for the hunger strikers at Guantanamo, some held for a decade or more without charge or trial? "Give me a break," he says.

DNA swab

So both Scalia's vote and his characteristically tart dissent in last week's Maryland v. King ruling came as a surprise, although not to some Court watchers who had noted his recent drift toward Constitutional sanity in Fourth Amendment cases.

The Fourth Amendment protects citizens against unreasonable searches and seizures— in other words the privacy of our possessions and communications. The latter issue exploded a few days later with the revelation by a courageous whistleblower, Edward Snowden, that the U.S. government was secretly collecting and trawling virtually every electronic communication in the country.

Maryland v. King addressed a narrower issue: whether police can take a DNA swab of persons arrested for "serious crimes." It nonetheless goes even more directly to the question of personal privacy— and also of Fifth Amendment rights against self-incrimination— than massive data collection practices.

"'Quick and painless'

Alonzo Jay King Jr. was arrested in 2009 on an assault charge, and swabbed in accordance with the procedures of a Maryland statute. His DNA proved a match for an earlier unsolved rape case, for which he was duly tried and convicted. An appeals court threw out the latter conviction, as well as the law, as a violation of the Fourth Amendment.

The Roberts Supreme Court, with Anthony Kennedy writing for the majority, overturned this decision, 5-4, with Clinton appointee Stephen G. Breyer providing the swing vote. Scalia deserted his conservative brethren to join the court's three "liberal" female justices— Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor— in the minority, for whom he wrote the aforementioned dissent.

Now, what's wrong with nabbing King for a second crime that he actually committed? Nothing, thought Justice Kennedy, adroitly sidestepping the real issues involved. Kennedy described the swabbing as a "quick and painless" procedure that, like fingerprinting and photographing, assured proper identification. It was thus no further an invasion of right than existing and long-established law enforcement practices.

Fishing expeditions

This reasoning, of course, was perfectly disingenuous. Fingerprinting and photographing are routine identification practices, for which reason they are applied generally in bookings, and not merely for "serious" crimes.

But DNA swabs are superfluous for this purpose. Their sole function is to facilitate investigations into cold cases with a DNA database— in other words, fishing expeditions for evidence of guilt in unrelated matters. It's not unlike the National Security Agency's data mining of electronic communications for algorithms pointing to suspicious or potentially subversive behavior.

Of course, fingerprints and photographs are already used to trace other crimes. But such markers may be used only in the case of convicted felons, or in circumstances where police have reasonable ground for suspecting a connection between one specific crime and another.

No such conditions applied to King. He had been accused but not yet convicted of assault, and there was by definition no connection between this crime and another crime not yet identified, much less linked to him. As Scalia observed in his dissent, "Solving crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law enforcement searches. The Fourth Amendment must prevail."

Citing the Founding Fathers

The common law principle enshrined in the Fourth Amendment— the danger of general warrants— was affirmed in the North Briton case of 1763. It's the same principle that says that the police can't enter your house without a warrant specifying the objective of a search.

(Of course, the Obama administration now says it can monitor all electronic activity within your house. I'll be curious to see how Scalia comes out on that one, if and when it reaches the Supreme Court.)

Scalia observed wryly that, by the Court's decision, only the innocent lose their rights. Had King been convicted of assault, there would have been no constraint on linking his DNA to unsolved cases. So, if you're arrested on charges that prove groundless, your DNA winds up in a database system that can be used in any subsequent investigation— criminal, civil or political. As for the alleged painlessness of the procedure, Scalia wondered whether the founders of the country would have thought it so small a matter "to open their mouths for royal inspection."

Saddam's humiliation

The famous photograph of the captured Saddam Hussein with his mouth forced open for dental inspection comes to mind. The purpose of that procedure, and of distributing the picture of it, was humiliation pure and simple, because there is no posture more humiliating that having one's jaws and mouth grappled open like a fish.

Mug shots and fingerprinting are positively dignified by comparison. Now that swabbing is the law of the land, we are all potentially fish on the same string.

We are caught today in an Orwellian world where fictional actors called corporations are empowered to act as "citizens," except that when they commit crimes they are often held too big to prosecute, while actual citizens, largely powerless in the public sphere, are defined more and more as objects of state suspicion. This, we're told, is all for our protection and security.

Even Antonin Scalia wasn't buying it this time.