In allowing DNA sampling without a warrant, Justice Kennedy proves to be the definitive swing vote

June 4, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in Washington(Editor’s note: This month marks the end of the Supreme Court’s current term.  Throughout the month of June, the Supreme Court will be issuing long-awaited and historic decisions, and we’ll be covering them throughout the month.)

In case anyone was still wondering, Justice Kennedy is currently the Supreme Court’s undisputed swing vote nearly all of the time.

In Maryland v. King, an opinion announced on Monday, the Court was split five to four and Kennedy wrote the majority opinion.

Such a split decision that finds Kennedy leading the majority isn’t unusual, and certainly supports the notion that Kennedy is the Court’s swing vote.

But there’s something even more striking about King that lends to that same conclusion, and it relates to Missouri v. McNeely, a similar ruling handed down by the Court this past April.

The Court observers among you may already be aware of McNeely’s holding, but for those who aren’t, here’s a quick overview.

In McNeely, the Court resolved the question of whether a police officer may obtain a nonconsensual and warrantless blood sample from a drunk driver.  Previously, 1966’s Schmerber v. California allowed such a practice only if there were “exigent circumstances” that prevented law enforcement from obtaining a warrant before the evidence (i.e. the high levels of blood alcohol content) was destroyed.

The State of Missouri tried to argue in McNeely that the natural dissipation of alcohol from the bloodstream over time constituted “exigent circumstances” that made forcible, warrantless blood draws acceptable under the Fourth Amendment.

The Supreme Court wasn’t convinced, and held otherwise five to four.  The majority consisted of Justices Sotomayor, Kennedy, Ginsburg, Scalia, and Kagan; the dissenters were Chief Justice Roberts, and Justices Breyer, Alito, and Thomas.

King dealt with a strikingly similar question: “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?”

The facts of the case begin with a Maryland state law that requires all arrestees in valid police custody for a serious offense to provide a DNA sample, which is obtained through a buccal swab applied to the inside of the cheeks.

The law, aptly named the “Maryland DNA Collection Act,” allowed for the collection of the DNA of Alonzo King, who had been arrested and charged with first- and second-degree assault “for menacing a group of people with a shotgun.”

Three weeks after King’s DNA was uploaded to the Maryland DNA database, it was matched to the DNA sample collected in an unsolved 2003 rape case, in which an unknown man armed with a gun broke into a woman’s home and raped her.

King was tried and convicted for the rape.  Although subsequent DNA samples were taken that linked King to the 2003 rape, authorities would have never made the initial connection if not for the buccal swab taken for King’s assault arrest.

As such, King challenged the evidence collected at that initial arrest, claiming that the Act allowing the practice violated the Fourth Amendment’s prohibition on unreasonable search.

The case finally made it before the Supreme Court, and, as mentioned earlier, the Court issued its ruling on it earlier this week.

As with McNeely (and as already stated), the ruling was split five to four, with Justice Kennedy in the majority.

Anthony KennedyUnlike McNeely, however, the majority found that the Fourth Amendment allowed the DNA sampling in question.

Granted, the circumstances in each case are not truly analogous: the DNA owner in McNeely had only been subject to a DUI stop, whereas the DNA owner in King was already arrested and charged with a serious offense.

Nevertheless, the justice’s battle lines looked exactly the same between the two cases – except for Justice Kennedy.

Instead of being in the majority (as they were in McNeely), Justices Scalia, Sotomayor, Ginsburg, and Kagan found themselves in the King minority.  Thanks to Justice Kennedy’s switch, the McNeely dissenters were the King majority.

Despite the differences between the facts of each case, the arguments and ideologies behind them remained the same.  Only Justice Kennedy’s vote changed.

As these cases demonstrate, being the swing vote like Justice Kennedy has more significance than simply getting more media attention than some of your other fellow justices.

Instead, it means being able to determine constitutional questions with serious, real-world implications.

Here, it amounted to being able to decide the different circumstances that police can extract an individual’s DNA without a warrant.

But there are other cases awaiting decision this month – some with historic implications.

Justice Kennedy’s decisions in these cases may single-handedly shape the direction that the nation’s laws take for the foreseeable future.