DNA testing is decades old. Police have developed techniques for using it to identify suspects. The suspect in Maryland v. King was caught because he was arrested for brandishing a shotgun. The police collected a sample of his DNA on a cotton swab they touched to the inside of his cheek. The sample matched DNA collected in the investigation of a brutal rape. King was convicted of that crime.
To most people, perhaps a vast majority, this seems reasonable, even a cause for celebration. The police solved an old crime. A victim got whatever justice she could from the capture and punishment of her assailant. The public breathed a sigh of relief that a dangerous criminal is now in prison instead of on the streets, looking for his next victim.
The Supreme Court is not most people, however. They are priests in the strange cult of Constitution worship. They compare every trial outcome to a piece of paper that is incomprehensible to most people. No one can predict what they will decide once they have performed the necessary rituals over the scrap of holy paper.
Justice Antonin Scalia is the high priest of Constitution worship. In this case, Scalia writes that the police should not be able to perform the simple act of touching the inside of a suspect's cheek with a cotton swab. The Constitution forbids it, he says. He has made similar statements in the past. The Framers of the Constitution, a small group of men who wore knickers, silk stockings, and powdered wigs, wouldn't permit it.
This seems most strange to me. Even the existence of DNA was unknown until about 160 years after the Constitution was written. Scalia and his brethren have no way of knowing what the men of those long-ago days would have thought about today's police procedures. The whole court considers what the Framers thought, or rather might have thought, to be very important.
The Supreme Court is very good at splitting hairs. In this case, the crucial detail is not whether the police collected the DNA sample, but when. The police should not have collected the sample at the time of arrest, Scalia writes. They should have waited until after the suspect was sitting in a jail cell. He thinks there is a distinction there.
Pragmatism should be applied here. The result in this case would be exactly the same, no matter when the DNA was collected. The result is good. Justice was done.
The Court is also very good at imagining impossible scenarios that are prohibited by the law. The Maryland law permits DNA to be collected only from people arrested for serious, violent crimes. Scalia predicts this will be used to trace minor traffic violators, even though the law specifically forbids this. He writes that this decision will be used to build a national database of DNA that includes everyone who has ever been arrested, rightly or wrongly. With this statement, Scalia is bragging that not only can he red the minds of long-dead framers, he can also foretell the future.
No one, not even a Supreme Court Justice, can foretell the future with any accuracy, any more than he can read the minds of long-dead men.