Antonin Scalia

Antonin Scalia, Bleeding-Heart Liberal

A Fourth Amendment case shows once again that the justice does not live up to his authoritarian reputation.


Antonin Scalia may be the Supreme Court justice whom progressives most love to hate. Daily Kos blogger Sylvia Moore says he is "clearly an authoritarian." A California Lawyer reader complains online that Scalia "actively promotes an authoritarian agenda in which the rights of the individual have little meaning." Even legal writer Joan Biskupic, in her relatively respectful and sympathetic biography of Scalia, refers to his "authoritarian bent" and "authoritarian instinct."

The latest refutation of this caricature is Maryland v. King, a decision issued Monday in which the Supreme Court upheld DNA testing of arrestees. Scalia's dissent illustrates how his respect for the Constitution leads him to side with the individual against the government—something that happens more often than you would expect based on his reputation.

The case involved Alonzo King, a Maryland man who was arrested in 2009 for threatening a group of people with a shotgun. As required by the Maryland DNA Collection Act, police swabbed his cheek for skin cells. Testing of the DNA on the swab linked King to a 2003 rape for which he was later convicted. 

The majority opinion (which was joined by Stephen Breyer, usually identified as a member of the Court's "liberal wing") concedes that the forcible collection of a DNA sample from inside King's mouth constituted a search under the Fourth Amendment. But the majority says that search, although warrantless and not based on any expectation that it would discover evidence of the crime with which King had been charged, was "reasonable" because it was aimed at "identifying" him.

Scalia blows that rationale to smithereens in a scathing dissent joined by the Court's three most left-leaning members. "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous," he writes. "These DNA searches have nothing to do with identification."

The police already knew who King was, and the DNA test, the results of which were not available until four months after his arrest, did not confirm his identity. Rather, the test implicated him in another crime.

"If the Court's identification theory is not wrong," Scalia writes, "there is no such thing as error." And since "the Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi­nating evidence," he concludes, Maryland's law is unconstitutional.

On other occasions Scalia has joined the majority in whittling away at the guarantee against unreasonable searches and seizures, especially in the name of the war on drugs. But he also has written majority opinions rejecting infrared surveillance of homes, GPS tracking of cars, and dog sniffs at doorsteps without probable cause.

Sentencing is another area where Scalia has shown concern for the rights of criminal defendants. He and Thomas led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment.

In Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an "enemy combatant," Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go. That is hardly the position of an authoritarian.

Scalia likewise has shown a decidedly non-authoritarian respect for freedom of speech in cases dealing with advertising, online indecency, flag burning, dog fight films, violent video games, and criticism of politicians. I would also count in his favor (although many progressives would not) his defense of the right to arms and his opposition to the abuse of eminent domain.

Scalia's record of resisting government encroachment on individual freedom is by no means perfect. But on the whole he is more liberal than some of his purportedly liberal colleagues.

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  1. Daily Kos blogger Sylvia Moore says he is “clearly an authoritarian.” A California Lawyer reader complains online that Scalia “actively promotes an authoritarian agenda in which the rights of the individual have little meaning.”

    Authoritarian, per se, is not a bad thing to them, I’m sure. For instance, if he had come out for the state’s authority to compel citizens to purchase a service, that would be celebrated. The only reason the progs would be agreeing with this dissent is because he joined the liberal wing in it.

    1. Authoritarian here, is just code for “making decisions I disagree with”. She’s one of those people who simply reduces “rights” to just another set of privileges, to be granted or taken away according to the government’s convenience.

      1. That sums it up quite nicely.

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  2. I was surprised to read that he was in the dissent of this case, after his “new professionalism” crack on Hudson v. Michigan.

    1. I think it’s actually pretty hard to pigeonhole most SC justices. I mean if you read enough opinions you start to get the feeling they’re just making it up as they go along.

      1. You mean like with the “Penaltax”? Unpossible!

    2. I dont think this has anything to do with that. I think the new professionalism is more about cops in the field, while this is more procedural and prosectutorial and bureaucratic, which he has mostly taken a very hard line on.

  3. If a person is arrested, they routinely take fingerprints and
    for something like this with potential for violence, might
    even do a body cavity search before putting him with other
    prisoners. Is a court order needed for every fingerprint or
    pat down? Or a body cavity search? In this last case, I might
    prefer to see a court order but I think they routinely do it.

    An oral swab for DNA is similar to fingerprints in its purpose
    and its uses. And it is much less invasive than a body cavity
    search. So I guess I am less opposed to a DNA swab than say
    searching someone’s car without cause.

    However, I am glad to hear that Scalia is much less authoritarian
    than many believe.

    1. An oral swab for DNA is similar to fingerprints in its purpose
      and its uses.

      I disagree. The amount of information that can be gleaned from DNA as compared to fingerprints is exponentially large.

    2. Scalia’s dissent hinted that he might not support fingerprinting as used either.

    3. An oral swab for DNA is similar to fingerprints in its purpose
      and its uses.

      You’re terribly confused.

      They don’t use the DNA swab to determine the identify of the prisoner so there goes “much like a fingerprint”.

      They don’t use the DNA swab to make the jail a safer place so there goes your comparison to a body cavity search.

      The DNA swab is unrelated a legitimate administration function of a jail.

      They purpose of the DNA swab is to gather evidence in unrelated criminal cases and to build a database to make future criminal cases easier to solve.

      1. They don’t use the DNA swab to determine the identify of the prisoner so there goes “much like a fingerprint”.

        As Scalia pointed out to anyone who read his fucking dissent, not only didnt they use it for identity, its illegal under Maryland law to use it that way.

      2. They purpose of the DNA swab is to gather evidence in unrelated criminal cases and to build a database to make future criminal cases easier to solve.

        The same can be said of fingerprinting.

    4. he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      So the question is, what is “unreasonable”? Picture appropriate for face recognition software? Patterns of ridges on my fingers? A piece of organic data that is the building block for my body?

      Also, ask what happens to that data next? We know the cops will troll the files for girlfriends and exs’new boyfriends information. We know large swaths of that data will be left on a park bench by the summer intern. We know the CIA will build cyborg warriors with the dna — no wait, forget I said that – still in the planning stage.

    5. An oral swab for DNA is similar to fingerprints in its purpose
      and its uses.

      This is one of the most absurd things I’ve ever read on here.

      Fingerprints can’t tell you anything other than, “yes, this person held that martini glass or opened that window”. A person’s DNA is practically the keys to his entire life and kingdom.

    6. Or they could just get their DNA sample while doing a body cavity search.

    7. Federal Courts have held that fingerprints are property. DNA certainly is. You can refuse to submit for fingerprinting and DNA swabbing. Some jurisdictions will steam roll you and take them anyway. Indianapolis does not. I do not recommend this for the untrained, you will get fucked.

  4. Scalia is first and foremost a Catholic then a Constitutionalist. If this had been a contraception/gay rights case he would follow Vatican edict.

    1. CHRISTFAG!!!1!1! XTIANIST!!!1!

    2. Agreed. If its drugs, he will do all he can to find a way to side with the state. Maybe it’s not his Catholicism, but some of his personal beliefs do sometimes seem to affect his positions more than his “originalism.”

      1. Agreed. He certainly doesn’t side with the Constitution when it comes to the War on Drugs.

        1. Not true. Just look to his opinion in the KYLLO case referenced in the article (finding warrantless use of infrared cameras used to find pot growers unconstitutional).

          1. I recognize Travis Bickle when I see him.

  5. If it were really about identification, the court could have allowed limited use of DNA gathering but prevented it from being used as evidence in an unrelated crime. That in itself is proof that they were bending over backwards to let this one pass.

  6. I love how those on the left apply the label of “authoritarian” when someone supports a government policy of the hated Boooosh administration, but if someone who supports a government policy of the exalted Obama administration is never authoritarian, not even when the policy in question happens to be a carry-over, such as the Patriot Act.

    You can trample the rights of others and sprinkle confetti you made from tearing up the Constitution as long as you have a (D) after your name, it seems. Too bad mental gymnastics isn’t an Olympic sport. These progs would win gold every time.

    1. Selective indignation.

  7. Progressives are fascists. Years ago, (somewhat classical) liberal ideology and fascist ideology scissored each other and produced an ugly offspring called Progressivism, blending the fascist penchant for authoritarianism with rhetorical support for liberal ideals.

    1. No, progressives are crypto-communists. Fascist is corporate control of the G, which they do NOT support. They support G control of everything, ie, communism.

  8. We’re talking Antonin ‘new professionalism’ Scalia here right? Oh but he sides against the government in decent. Well that’s comforting.

  9. Scalia is an authoritarian. He’s just an authoritarian with something to hide so he can relate this time.

  10. “Daily Kos blogger Sylvia Moore says he is “clearly an authoritarian.””
    A LEFTY makes this claim?

    1. Is there anyone who is more of an authoritarian than Lefty?

      1. The claim is Hitler was not socialist; the evidence says otherwise.
        Even if, was he (or his dictatorship) more authoritarian than the run-of-the-mill socialist state? No.

  11. “…something that happens more often than you would expect based on his reputation.”

    Only if you base your idea of reputation upon the pronouncements of progressives and other forms of leftists. People not exactly known for their affinity for individual liberty.

  12. When compared to the other justices, Scalia does seem to err on the side of individual liberty more often than not. And that being said, judging by the majority of their rulings, the greatest threat of all to our liberties appears to be from the Judiciary.

  13. DNA capture on arrest is a very slippery slope. Suppose there is a powerful politician with an “enemies list”. He/she abuses their power to get law enforcement to arrest an “enemy” on base-less charges. No charges are filed and certainly no conviction is attained. But now this “enemy” is at constant treat of further abuse because their DNA is now on file. That is not reasonable and there is no probably cause. Only abuse of power.

  14. DNA is not like a fingerprint, which other than unique identity carries no additional information. DNA has the power to convey a tremendous amount of personal information – even in the absence of a link to a particular identity.

    SCOTUS, whether they realize it or not, has just authorized the largest data mining operation directed at the citizenry.

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  16. Being called authoritarian by an Obama zombie who supports the presidential power to arbitrarily and without trial muderdrone US citizens is so hilariously ironic that it would work as satire if the left were at all capable of being satirized at this point.

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  18. I suspect the clear writing and thinking of Justice Thomas has had an influence on Scalia. Thank God for Thomas who defends our rights against an out of control government.

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