Why liberals should love Justice Scalia

On Tuesday, the Supreme Court heard arguments in a challenge to the constitutionality of a Maryland law -- similar to one in California -- that requires police to take DNA samples from people arrested for serious crimes.

Starting with what she obviously thought was her strongest argument, the lawyer for the state noted that DNA profiles generated from arrests had matched those from the scenes of unsolved crimes more than 200 times, resulting in 75 prosecutions and 42 convictions.

“Well, that’s really good,” interjected one of the justices. “I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions too.”

Those who don’t follow the court closely might be surprised that the champion of 4th Amendment rights who made that crack was not one of the Democratic appointees but the “arch-conservative” Republican appointee, Antonin Scalia. But for students of the court, Scalia’s skepticism about the constitutionality of DNA testing was no surprise. After all, he wrote the majority opinion in one of the court’s most resounding recent affirmations of the right to be free from unreasonable searches.

In Kyllo vs. U.S., the court ruled that federal agents engaged in an illegal search when they trained a thermal imaging device on a house where they suspected marijuna was being grown. (Unusual heat was a tipoff that weed was being cultivated under high-intensity lamps.)

Contrary to the caricature that Scalia thinks the Constitution should be enforced only in ways the framers could have visualized, he said in that decision that when “the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

It isn’t just in search-and-seizure cases that Scalia takes a liberal -- some would say libertarian -- position. He’s an ardent defender of free speech (joining with liberal justices to overturn laws criminalizing the burning of the American flag as a protest) and has led a movement on the court to reinvigorate the confrontation clause of the 6th Amendment, which says that the accused has the right to be confronted with the witnesses against him.

Scalia’s position on the confrontation clause is a good example of how his “conservative” jurisrpudence can be more protective of individual rights than the “living Constitution” approach of more liberal justices. In 1990, the court upheld by a 5-4 vote Maryland’s practice of allowing children who allegedly had been sexually abused to testify on closed-circuit television so they wouldn’t have to be in the same room as the defendant.

In what reporters like to call a “stinging dissent,” Scalia (joined by the court’s liberals) exclaimed: “Seldom has this court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion.”

At the time of the decision, America was still in the throes of a national panic about the abuse of children in day-care centers and other settings, and the notion that testimony by children might be unreliable or coached was widely rejected. (Remember the “Believe the Children” bumper stickers?) To many, the importance of prosecuting child abusers was worth compromising a constitutional right.

The majority opinion in the closed-circuit TV case was written by Justice Sandra Day O’Connor, the “moderate” justice often lionized by the media for her flexibility.

This wasn’t the only case in which O’Connor was willing to trim individual rights and Scalia stood fast for full protection. In Hamdi vs. Rumsfeld, the 2004 case in which the court held that inmates at Guantanamo had some due process rights, O’Connor said that a U.S. citizen held as an enemy combatant was entitled only to a hearing “before a neutral decision-maker” (no mention of a jury). In his dissent, Scalia argued that the citizen was entitled to something much more robust: a trial on a treason charge.

The flip side of Scalia’s insistence on vindicating explicit constitutional rights is his resistance to acknowledging implied or unenumerated rights -- such as a right to abortion or (we can safely predict) to same-sex marriage.

You can wish he were more receptive to recognizing those rights, but his steadfast defense of explicit rights deserves more recognition than it has received. Maybe that will change if he writes an opinion (ideally a majority opinion) holding that police need a warrant to match the DNA profile of an arrested -- but not convicted -- person against a database of unsolved crimes.

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