On the Court

During last week’s look at the Best of the Spherical Model (Part I, Part II, and Part III), I left out one piece that is actually among the most re-read: Supreme Court Voting Patterns. My son Political Sphere had collected data to look at the Supreme Court’s voting record up to the point just before the Obamacare vote. It was topical, which is why I didn’t include it last week. But enough has come up about the Court this week that I’m thinking it would be good to update the voting record chart in the near future.

In the meantime, a couple of recent rulings are worth looking at.

Monday, June 16, the Court ruled on an Arizona Voter ID case, about whether a state can require verification of citizenship for voter registration when federal law does not require such verification. The short answer you’re hearing in the news is that the Court favored the federal government’s view, and limiting states. But the more complicated, actual ruling is that on one of five issues (the least relevant), the Court sided with the federal government, but on the other four issues, the Court verified states’ rights—which is a good thing. J.Christian Adams, former DOJ attorney and author of Injustice, has been working with voter integrity issues for a long time. His assessment is an excellent summary.  The Heritage Foundation also covers the ruling.

Back on June 3^rd, the Court ruled on the collection of DNA evidence. Justice Scalia dissented from the majority—along with three of the liberals on the Court. Nevertheless, I think as usual Scalia is right.

Here’s the scenario from the case: a man was taken into custody for assault in Maryland in 2009.  DNA taken during his arrest for the assault became evidence in new charges against him from a 2003 rape, because his DNA matched a rape kit kept from that earlier case. An evildoer is caught; that should be a good thing.

Here’s the problem: the Court ruled that DNA could be taken at the time of arrest, because it is essentially an identifier, like fingerprints. What they could foresee was that, if a prisoner needed to be moved, the DNA would prove that the correct person was being transported. But that isn’t actually how ID-ing a prisoner would work. His fingerprints would indeed be a quick and accurate identifier. Taking a fresh fingerprint and using a fingerprint database would take no more than half an hour. But taking a DNA sample for that purpose would never be done. The sample would need to go to a lab, where it could take, at best, hours (and more likely weeks) to compare to the existing record of that prisoner’s DNA. In the case in question, the DNA wasn’t looked at until four months after arraignment.

And even then it wouldn’t be infallible. DNA results show whether there’s a high likelihood that two DNA samples match. It’s a matter of probabilities, not certainty. We can’t say no two humans have the same DNA. Identical twins occur in about 11 births per thousand, and they share identical genetics. But even identical twins have different fingerprints.

So, for greater expense, longer time, and less accuracy, why use DNA instead of fingerprinting?

The Court seemed to agree that collecting the DNA for the purpose of using it as a fishing expedition to tie the suspect to other crimes was not right. The DNA, when collected for use in the case where the person is a suspect is a reasonable gathering of evidence. But what if the suspect is exonerated of that crime? Should his DNA be kept, and used to compare to other crimes? Is he required to provide evidence against himself for unknown, unsuspected crimes, on the off chance that something might be found someday? The Court halfway said that couldn’t be the reason. But, if you think of the DNA not as evidence, but as just an ID, like a fingerprint, then it was OK. (And then, if it happened to be used in some other way, that wasn’t the Court’s concern.)

If one were to assume a corrupt government (just hypothetically speaking), it would be difficult and improbable for some official to place a political enemy’s fingerprints at a crime scene in order to frame the person. But placing DNA at the scene could be in the form of a hair, a fingernail, a bit of saliva left on a drinking glass. The person kind of has to be there to leave his fingerprints, but he doesn’t necessarily have to be there to have his DNA placed there.

Even without a corrupt government, we do have a fourth amendment protection that is at issue. As Scalia summed it up: "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." Yes, those amendments—they keep coming up.

Meanwhile, in a slightly related issue, Senator Mike Lee (R-UT) has just come out with a book, Why JohnRoberts Was Wrong on Obamacare.  He lays out the case that the Chief Justice changed his opinion midstream concerning Obamacare, coming up with the tortured ruling that it was OK if it was a tax, which it was declared not to be by federal government lawyers on days it was convenient to say that, but declared as a tax—by the same lawyers on other days when that was convenient.

available here

I haven’t read the book yet. From what I’ve seen covered, I think it implies there may have been pressure on Roberts to change his opinion. Most of us who were looking on at the time thought that was the case. There was quite a lot of evidence, just in the way the dissent was written, as if it had been the majority opinion, that he had changed his mind. So the question we all had was why. I think we’d all still like to know: was Justice Roberts coerced? Were there threats to his reputation or his person or his family? Was he more subject than we thought to political pressure or the desire to be liked in Washington? We’d like to know, because his vulnerability to pressure, for whatever reason, coupled with the power to determine binding law, has consequences for all of us.

Even when our justices are wrong, we want their opinions to come from their best understanding of the Constitution, not some tortured effort to reach a pre-desired outcome.