Tuesday, June 4, 2013

Stephen Breyer's Buccal

Winning entry in Monday's Stupidest Remark by an Elected Official competition:
This is a resounding victory for both law enforcement and civil libertarians.
That's Maryland's Attorney General, Douglas F. Gansler, reaacting to the fact that Stephen Breyer continues to believe in the idea of the Constitution rather than the Constitution itself.  OK, OK, I'm maybe being unnecessarily obtuse.

The Supreme Court on Monday issued its opinion in Maryland v. King. The Fourth Amendment, Justice Kennedy said writing for a 5-4 majority, is perfectly happy to have cops take buccal swabs of everyone arrested for serious crimes, use them to generate DNA profiles, and then search to see if their DNA matches the DNA on file from unsolved crimes.  

That's fine, Kennedy said, because it's not particularly invasive to actually take a buccal swab, and it's important to check and see if the guy arrested today might have committed any other crimes because that's how we can be sure the guy we arrested today is the guy we arrested today which is both reasonable and necessary and golly gee, who would object.  And besides, if they'd taken a DNA sample when they arrested Tim McVeigh for not having a license plate on his car, they'd have figured out that he was the guy who'd just blown up the Murrah Federal Building and so been able to prevent it from having happened a little earlier instead of how they figured out that he was the guy who'd blown up the building when they arrested him but because they didn't get a DNA sample that would take up to a month to analyze they weren't able to stop him from doing what he'd done before they arrested him.

Really, that's what he said.

Of course, he dressed it all up in fancy legal gobbledygook and scattered citations to irrelevant Supreme Court decisions and the like.  But he had to do that because the alternative would have been to write something like this.
You never know when the guy you've arrested might have committed other crimes, and we have a chance of figuring it out if we take DNA samples from everyone we arrest.  (We'd do even better if we simply took DNA from everyone, but Maryland hasn't enacted that law yet.)  And since innocent people won't be fingered, they can't possibly mind having their DNA in a big national database, and if they do, well, who really cares what they think if we can maybe catch an extra bad guy or two.  And the Constitution's constraints on that sort of thing are messy, but we're talking about catching bad guys, so things like the Fourth Amendment just have to give way.  I mean, that whole thing about warrants and probable cause just interferes with law enforcement, so we can ignore it.
Which he couldn't really say.

Antonin Scalia, on the other hand, writing the dissent, pretty much said just that.  The Maryland law at issue specifically prohibits using the DNA samples for the purposes Kennedy claims can justify the law.  And as a practical matter, it's worthless for those purposes even if they were legal.  No, Maryland wants to take DNA samples from everyone arrested simply to solve crimes.
Solving unsolved 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.
Which is, I have to say, exactly right. 

What, you may rightly ask, has this to do with Stephen Breyer?  And where in the world did Attorney General Gansler get the idea that King was a win (a "resounding" one) for civil libertarians?

The short answer to the Breyer question is that he's responsible for the decision.  Oh, Kennedy wrote the opinion, and he's the standard swing vote.  He was joined, as you'd expect, by law and order types Roberts and Alito.  Clarence Thomas signed on, too, because the Fourth Amendment just like all those other parts that try to prevent government agents from doing what they want to individuals.  His Constitution was to defend the prerogatives of rich white guys and whatever they want to do to folks they think are maybe criminals (or, really, anything other than rich white guys) is just fine (as long as it doesn't advance the interest of those folks).  Really, you could imagine Kennedy voting either way on this one, but Alito? Roberts? Thomas? You knew where they'd come out.

You might imagine you'd find Scalia there, too.  But he switched sides on this one.  His dissenting opinion isn't particularly originalist.  He doesn't explain what the framers did, spends just a couple of sentences mentioning their attitudes.  Rather, he's pretty clearly offended at Maryland's (and Kennedy's) brazenly dishonest position.

The problem child here is Breyer.  He of the allegedly liberal bloc.  He who as a child had people "stick things in [his] underwear."  He who was attacked by a machete wielding desperado.  He signed onto Kennedy's opinion, which gave it a majority.  That's not what's supposed to happen.  Breyer's supposed to be this staunch liberal.  Which is, of course, hogwash.

Breyer, as I've said before, sees the job of the Court as helping government be efficient, especially if it can be done without it being too overbearing on individual rights.  Buccal swab?  No big deal.  Catch bad guys?  Big deal.  Rules for police to follow? Excellent.  Sign me up.  The Fourth Amendment? Feh. Not this afternoon.

Sure, the Fourth might prohibit this.  But the idea of the Constitution, the sort of government you'd like to have (he'd like to have)?  The idea trumps the reality which is clumsy and inefficient.  We're talking a fucking buccal swab.  And it won't be in his buccal.

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