This morning, the Supreme Court issued a 5-4 opinion, with a scathing dissent from Justice Scalia. But the case, Maryland v. King, is not one of the big marquee cases of this Term, nor was the line-up predictable. Writing for the majority, Justice Kennedy held that the Fourth Amendment allows a state to take a DNA sample using a cheek swab from all individuals arrested for serious crimes. He was joined by Chief Justice Roberts and by Justices Alito, Breyer, and Thomas. Justice Scalia, who dissented orally this morning after Justice Kennedy announced the opinion, was joined by Justices Ginsburg, Kagan, and Sotomayor.
The difference in the line-up today and in Florence v. Board of Chosen Freeholders is interesting. In that case, in which the Court upheld the routine strip search of non-violent arrestees (at least under some circumstances), Justice Scalia was in the majority upholding a state practice against a Fourth Amendment challenge, while Justice Breyer was the scathing dissenter. All the other votes tracked today’s case.