Posted on 06/05/2013 8:12:29 AM PDT by Kaslin
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 Clarence 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.
No hurling here. He’s right in this case, and he’s been far more dependable than Roberts on the big questions.
“Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.” Hugo Black
I side with Scalia 100% on this one...
Agreed!!!!!!!!!!!
liberals especially democrats are always for big government and the eroding of individual rights bigger government brings,. Obamacare, gun control ,global warming laws, wealth redistribution, what don't democrats want the government to do and to control us on?
Democrats believe we have no freedom of speech to bash Muslims.
I don’t get the “hurl” critique either, unless it’s a criticism of the last line saying that Scalia is “more liberal” at times than other members of the Court. Protecting civil liberties is neither liberal or conservative; it’s Constitutional. Scalia is absolutely right on this count; in fact, the “unintended consequence” (trust me, it’ll be intended) can (and, will) be horrific: For example, let’s say some teenage girl is raped at a house party. No one knows who did it, other than it was a young person from the town. Pretty soon, teenagers are being arrested for all sorts of petty crimes and misdemeanors, none of which are actually going to prosecuted, but all of which involve the police telling the kids, “We’re just going to take a DNA swab as part of your booking process.” The police don’t even have to have a meeting about this - they just know if certain people get arrested, DNA samples will be taken. Scalia is dead on right about this.
The “test everyone for DNA” action was first used in the eighties in a small town in England to catch a rapist-killer named Colin Pitchfork. The police asked 5000 local men to volunteer for a DNA test. Pitchfork paid another man to take the test for him. The man was later overheard in a tavern bragging about taking the test for Pitchfork. Pitchfork was then taken in for questioning and tested. When the results proved positive, Pitchfork was arrested and eventually sentence to life in prison for two rape-murders. But all the men who took the test volunteered. There’s the difference between forced DNA swabs.
Come by and pick me up on the Scalia bus. I will be there. He was right to vote against the law and order crowd that is going so far in a new perspective of history. Let the states work it out; our rights are protected in the constitution. Sometimes, the so called conservatives must see the document as a living document as well. Justice Roberts should go home. The Chicago thug style arm must have something on Roberts to where he voted in punishing the people with OBamacare; a socialism reformation of America. Roberts has pushed the first domino. He is like Obama. He has punished us not persevering our rights.Imo.
Oh to have 8 more “Liberals” like him appointed....Seven more I guess with Thomas on board....
Scalia is right, and I’m disappointed in the other two “conservative” justices.
The hurl is on the author, not judge Antonin Scalia
So do I and just to make myself clear. My hurl alert is meant for the author
Am I forgiven?
especially the author’s accusation that he is more liberal then some of the liberal judges
Good to see so many folks on this site disagree with this stupid decision of the court to agree with warrantless DNA searches. True freedom will occasionally allow guilty men to go unpunished for their crimes until they meet the Lord and He dispenses Justice.
Scalia more than any other justice has been an advocate against government intrusion of individual privacy rights. DNA sampling not only gives government access to your DNA, but to the DNA of your entire family, and government can arrest you for eating a ham sandwich on Friday. So what if they drop the charges on Saturday - they still got your DNA
I’d have to bet that it’s far easier for somebody (i.e. police) to frame you using DNA than with fingerprints. Search warrant for your home, a couple of hairs from your bathroom, hey look, here’s one of your hairs at the crime scene.
I also don’t like the matter of them eventually (ten more years? less? more?) being able to routinely ask the lab if you have “the gene for aggression”, “the gene for anti-social behavior”, “the gene for being a conservative”, etc. and then using that against you.
I think the author’s title was sarcasm. He notes the “caricature” of Scalia repeatedly described as an “authoritarian”.
But I needed to read the entire article carefully with that supposition in mind, actively looking for clues supporting it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.