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When court takes up privacy, Scalia finds himself with unlikely teammates

Alex Wong / Getty Images file

U.S. Supreme Court Justice Antonin Scalia speaks in 2012.

Justice Antonin Scalia’s dissent Monday in a Supreme Court ruling about police taking DNA samples had all of his usual hallmarks — crackling language, biting humor and a history lesson from the founding of the republic.

What may have seemed surprising, however, was who joined his opinion: Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg, three reliably liberal members of the court who are generally ideological opposites of Scalia.

But the DNA case hinged on privacy — whether the Fourth Amendment protection against unreasonable searches is violated when police swab the cheek of someone who has been arrested but not convicted of a crime.

Scalia has appeared more concerned in recent years about privacy, said Tom Goldstein, the publisher of SCOTUSblog, who teaches at Harvard Law School and has argued before the Supreme Court.

“[His vote Monday] is a surprise in the sense of his general conservatism,” Goldstein said, but not in light of his recent rulings. “We’ve seen several decisions where he has joined more liberal justices to find greater privacy rights.”

Last year, when the court ruled unanimously that police in Washington were wrong to place a tracking device on a suspect’s car and monitor his movements, it was Scalia who wrote the opinion for the court.

“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information,” Scalia wrote. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

Scalia also joined the majority in a 2009 decision that limited the circumstances under which police can search the cars of people under arrest.

As Kevin Russell of SCOTUSblog noted at the time, when an assistant solicitor general suggested during an oral argument that a car could be searched after a traffic violation for evidence of a different crime, Scalia was incredulous.

“You avowedly say that once you arrest somebody you can rummage around for evidence of a different crime?” Scalia said.

That case created some strange bedfellows, too, as Scalia joined another conservative justice, Clarence Thomas, and three far to his left: Ginsburg, John Paul Stevens and David Souter.

Scalia, a 77-year-old appointee of President Ronald Reagan, has not endorsed a blanket right to privacy in the Constitution. In fact, he been pointed in voicing his opposition to that notion. He declared in an interview with Fox News last year: “There is no right to privacy. No generalized right to privacy.”

When the interviewer, Chris Wallace, pointed out that the court had established a right to privacy in the landmark 1965 case Griswold v. Connecticut, Scalia shot back: “Indeed it did, and that was — that was wrong.”

In the case decided Monday, a five-justice majority found that police have the right to take a DNA sample from someone who has just been arrested — and therefore has yet to be convicted.

Scalia, with those three liberal justices joining him, said that DNA sampling constitutes an impermissible search under the Fourth Amendment.

“Solving unsolved crimes is a noble objective,” he wrote, “but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”

Later he unspooled his argument with some vivid examples. The ruling may solve more crimes, he said, but so would taking the DNA of anyone who flies on a plane, applies for a driver’s license or attends public school.

Then, in a characteristic nod to the framers of the Constitution and an allusion to the cheek swabs that police use to gather DNA, he concluded:

“Perhaps the construction of such a genetic panopticon is wise. But 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.”

Orin Kerr, who writes for the widely read legal blog The Volokh Conspiracy, said in a post Monday that court-watchers should not be surprised by how Scalia voted. He has sided with the defense in every Fourth Amendment case this term, he said.

“Defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing,” Kerr wrote. “So we’re seeing more defense-side briefs targeting Scalia’s vote.”