Posts Tagged ‘Supreme Court’

In yesterday’s post, I discussed Maryland v. King.  Those arguments,  heard at the Court on February 26, considered whether a state should be permitted to take a DNA sample from every person arrested (not convicted — arrested) for a felony.  I asked in my post that we put questions of  individual privacy aside, and instead ask whether such wide sampling would be a good idea from a crime-solving point of view.  (Some experts do not think so, as discussed in the post.)

Today, let’s put the question of privacy back into the equation, because that appears to be what the Justices will do.

In his recap of the Feb. 26 argument, Scotusblog’s Lyle Denniston tells us that the key points were posed by two of the Court’s conservative justices.  According to Denniston, Justice Samuel Alito clearly favored the idea that law enforcement should be able to take these samples.  DNA sampling “is the 21st century fingerprint” Alito said at least twice.  According to his way of thinking, there is no constitutional difference (in terms of the degree of intrusion on individual privacy) between taking a fingerprint and taking a DNA sample.

The other pole of the argument was taken up by conservative icon Justice Antonin Scalia.  When the lawyer for the state of Maryland used a long list of cases solved through DNA testing to support her argument in support of the law, Justice Scalia reacted forcefully.  According to the National Law Journal:  “Well, that’s really good!” Scalia exploded. “I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.”  In other words, the question isn’t whether the state’s action solves cases; some methods of solving cases are simply not allowed under the Constitution, even if they could be proven to work better than others.  The question is whether the Constitution — in this case, the Fourth Amendment’s prohibition of unreasonable searches — allows the state to do what it wants to do.

During Tuesday’s argument, Justice Alito commented that King could be “the most important criminal procedure case this Court has had in decades.”  That will depend on how the Court decides the case, which it will do sometime before the end of June.  But one thing we do know:  the debate between law enforcement’s desire to use all the tools it can to fight crime and the Constitution’s protections of the individual against state intrusion will go on.


With Robert Bork’s death on Wednesday, December 19, I didn’t think first of his failed nomination to the U.S. Supreme Court.  Instead, I was back in my first semester of law school, as a student in his class on Constitutional Law.

By the time I took my seat in his class in the Fall of 1980, Bork was already well known. During the  Nixon Administration, he’d served as U.S. Solicitor General, the Administration’s advocate in the Supreme Court.  When the Watergate Scandal began to consume Nixon’s presidency, Archibald Cox was appointed special prosecutor.  Cox showed every sign of pursuing the ugly facts of the case all the way to their origin, and Nixon wanted him fired.  But Nixon’s Attorney General, Elliot Richardson, and Richardson’s deputy, both refused.  Bork stepped forward and fired Cox, in what was known thereafter as “the Saturday Night Massacre.”

Bork was also well known as an acerbic and distinctively conservative voice among law professors.  It was he who came up with what became known as the “original intent” school of constitutional interpretation.  According to Bork, the language of the Constitution and its amendments could only be understood through the intention of those who wrote those words.  Thus constitutional protection for the rights of women, privacy protections for personal decisions on birth control or abortion, the one-person-one-vote rule, even the 1964 Civil Rights Act and its regulation of interstate commerce on a non-discriminatory basis — all of these would be out under the Bork philosophy.

In the classroom, we could all see that Bork was an incredibly smart man.   His mind was powerful, supple, and insightful; he ran rings around all of us without any effort at all.  Lazy, fuzzy, or unexamined thinking got students into trouble quickly.  There was also little humor or humility in his approach; he was a guy with THE ANSWERS, and he made sure you knew it.  The class was challenging, and forced me to re-examine everything I thought I believed, and everything that generations of justices had said in their opinions.  Now, with twenty years in front of classrooms in law schools myself, I know that was the point.  But I often found myself recoiling from what I considered a harsh, almost Hobbesian worldview.  The clear implication of many of Bork’s views would have been the repeal of the New Deal, many steps backward on equality for women and  minorities, and a narrowing of political power to already-favored groups.  A society I did not recognize and had not lived in would have been preserved in amber.

Bork was not shy about these views; on the contrary, he wrote and spoke them frankly and frequently.  Justice Scalia, very much Bork’s intellectual twin, still holds the same sorts of views on interpreting the Constitution; Scalia, though, has gradually backed away from strict “originalism” to what he calls “textualism.”  When he speaks publicly and is challenged on whether his views would, in fact, give him the basis for repealing the New Deal, the regulatory state, and the like, I have heard him say, “I’m a textualist.  I’m not a nut.”  I can only imagine Bork’s scowl upon hearing that.  Bork would not have considered himself a nut, but he would have had — did have — the guts to be consistent.  He meant what he said.

Thus it was no surprise that Bork’s nomination to the Supreme Court attracted opposition fiercer than anything ever seen before.  His chance to be a justice — to enjoy what he told the Senate Committee would be “an intellectual feast” — went down to defeat, 58-42.

Personally, I was not surprised.  Quite aside from his views, which were then very far from the mainstream of even conservative legal thought, he was the same person in front of the Judiciary Committee as he had been in the classroom: an intellectual titan, but dry, harsh, seemingly unmoved by human concerns.  I did not know the man personally; by all accounts of those who did, he had a warm and human side.  But no Senator saw it, and his manner played right in to the efforts to defeat him as a cold-eyed elitist.

Bork lived out the rest of his life as a public intellectual, writing books and giving speeches.  The defeat embittered him, and he became a moral scold.

But, in his time, he mattered, and his defeat mattered.  In my next post, I’ll discuss why.


A few weeks ago, I wrote a post  here about two cases heard by the U.S.  Supreme Court about police use of drug-sniffing dogs: Florida v. Jardines and Florida v. Harris.   But now comes news that technology may take us a step further than those cases would.  It seems that scientists have built a device that mimics the power and accuracy of the canine nose.

Professors Carl Meinhart and Martin Moskovits at the University of California at Santa Barbara have engineered a device that uses a computer chip to imitate the extreme sensitivity of the cells in dogs’ noses using “microfluidic nanotechnology.” According to Dr. Brian Piorek, whose company, SpectraFluidics, has patented and exclusively licensed the technology, “Our patented nanoscale vapor detection platform has enabled us to create a … chip that biomimics a dog’s keen sense of smell.”   The bottom line is that this device is highly sensitive to vapor molecules that are an important part of TNT.    The full story is here.  And here is the an abstract for a study the scientists published on the technology in the journal Analytical Chemistry.  According to another story on the technology, there is no apparent reason that the device could not be built to detect almost any other type of vapor molecule, including of course vapor molecules from narcotics.  According to Professor Moskovits,  “The paper we published focused on explosives, but it doesn’t have to be explosives.”

Here’s the thing: this was all foretold, a generation ago, and the law may not be fully prepared for it.  The U.S. Supreme Court made its first decision about drug detection dogs in 1983 in the case of U.S. v. Place.  In that case, in which a trained dog was used to detect narcotics in a suitcase, the Court said that dogs were uniquely unintrusive, since they could search the inside of a concealed space (like a suitcase) without the police having to open it.  The dog would then give limited, binary information to the police officer: using a signal the dog was trained to give, the dog would “say” that drugs (or explosives, or whatever) either were, or were not, present.  Dogs were also, the Court said, almost unfailingly accurate.  Therefore, the Court said that a trained dog could be used on an object like a suitcase without a warrant, without probable cause — indeed without any evidence at all.  It was a far-reaching and very open-ended decision, though few saw it that way at the time.
But in a case the next year called U.S. v. Jacobsen, a dissenting opinion by Justices Brennan and Marshall recognized the full implications of the dog-sniffs-are-so-good-they-aren’t-searches idea.
…[T]he Court’s analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.
Well, it seems that the future is here.  If the Court uses its two dog sniff cases this year to give police the power to walk up to the door of a home with a drug-sniffing dog — and they might do this very thing in Florida v. Jardines — think of how easy it may be for every police department to equip all of its police officers with canine noses, to use whenever they want.  And, unless the Court curtails existing police power over the use of drug-sniffing dogs, the Constitution will have nothing to say about regulating the use of these devices.