In his dissent last week in the case of Maryland v. King, Justice Antonin Scalia argued that the Fourth Amendment is violated when police take warrantless DNA samples from individuals arrested for serious crimes. “Make no mistake about it,” Scalia wrote. “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” As he concluded, “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.”
Among the justices who joined Scalia in this strongly-worded dissent was the Court’s newest member, Elena Kagan, who replaced the retiring John Paul Stevens in 2010. In case you were wondering how Stevens might have voted in the case, he’s happy to tell you. In a speech delivered last Friday before the liberal American Constitution Society, Stevens admitted that unlike Kagan, he would have sided with the majority in favor of allowing the DNA seizures. “Rules that unnecessarily preclude the use of such evidence may impede the search for truth without providing any meaningful protection for privacy interests,” Stevens said. “In the Maryland case, for example, the only interest in privacy that was implicated was the defendant’s interest in not being convicted of a serious crime that he in fact committed.” Not exactly a robust endorsement of the Fourth Amendment’s role in protecting the rights of criminal suspects.
For those of you keeping score at home, this is not the first time Stevens has weighed in on the outcome of a Bill of Rights case that was decided after his retirement. In his recent memoir, for example, Stevens wrote that he would have joined Justice Samuel Alito’s lone dissent in the 2011 case of Snyder v. Phelps, where the Supreme Court held that the First Amendment protects the right of the Westboro Baptist Church to stage ugly protests outside of military funerals. “Such speech cannot be restricted simply because it is upsetting or arouses contempt,” declared the majority opinion.
It would appear that civil libertarians have increasingly good reason to prefer Kagan over her predecessor.