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The week in review

With the Court’s busiest month of the year now underway, Tejinder Singh takes a look back at this week at the Court.

Happy Friday! For those who missed this week’s action at the Supreme Court, here are the highlights, with links to more complete coverage if you really want to impress your friends.

The most significant news from the Court this week is its five-to-four decision in Maryland v. King, holding that Maryland’s DNA Collection Act – which permits the police to take DNA from people arrested on suspicion of serious crimes and compare it to a database of DNA samples from unsolved crimes – does not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court’s opinion, written by Justice Kennedy, holds that the DNA testing procedure is minimally intrusive because it only requires a cheek swab, and because people detained for serious offenses have diminished expectations of privacy anyway. Analogizing the DNA swab to photographs and fingerprinting, the Court further held that the procedure serves the important government interest of facilitating the identification of suspects in custody and is therefore reasonable under the Fourth Amendment.

Justice Scalia – joined by Justices Ginsburg, Sotomayor, and Kagan – took the relatively rare step of reading a fiery dissent from the bench, arguing that because the purpose of the DNA test is not identification, but investigation of crimes, the Fourth Amendment does not permit the police to take and test the samples without a warrant. The dissent has become an instant classic, as Justice Scalia blasts the DNA Collection Act as creating a “genetic panopticon” and excoriates the majority for turning a blind eye to the true purpose of DNA testing. The case has drawn attention because of the unusual division among the Justices: conservative hero Justice Scalia sharply criticized the pro-police ruling, while the more liberal Justice Breyer broke ranks to side with the conservative majority.

The most significant implication of the Court’s decision is that DNA testing for arrestees may become ubiquitous. According to the opinion, twenty-eight states presently have laws similar to the Maryland DNA Collection Act. Expect that number to go up. It is also likely that at least a few states will try to push the boundaries on this issue by authorizing DNA sampling in a broader range of situations – for example, for all arrestees, rather than only those brought in for serious offenses. Readers discussing the case at cocktail parties may speculate about whether states will go even further than that, requiring DNA swabs for anybody trying to enter a secure government building, or obtain welfare benefits. And of course, the case raises a litany of fascinating questions, including whether society’s interest in cracking unsolved crimes justifies suspicionless DNA testing, and more broadly whether advances in technology that enable the government to gather significant amounts of data rapidly and with minimal physical intrusion should be subject to less Fourth Amendment scrutiny. The Court’s answer appears to be “yes” to both questions.

Also on Monday, the Court decided Hillman v. Maretta, a case that precipitated considerably less disagreement. A unanimous Court held that the Federal Employees’ Group Life Insurance Act, which requires the proceeds of federal employees’ life insurance policies to be distributed to their named beneficiaries, preempts certain state laws that permit the employee’s family to sue the named beneficiary to recover the proceeds. The upshot is that unless one of the narrow exceptions in the federal law applies, a federal employee’s life insurance designations are binding, and not subject to second-guessing by the states – even if, for example, the employee and the beneficiary were divorced after the employee completed the form designating the now-former spouse as a beneficiary. Readers employed by the federal government will want to ensure that their designations are up to date.

The Court also issued orders this week. It granted review in two new cases: Lexmark International v. Static Control Components, in which it will consider who has the right to bring a false advertising claim under the federal Lanham Act; and United States v. Apel, involving the question whether a statute prohibiting trespassing on military bases applies to portions of the base that are subject to public roadway easements. Those cases will be heard next Term, and the grants bring the total number of cases on next Term’s docket to twenty-seven, although we expect that at least one case – U.S. Forest Service v. Pacific Rivers Council – will be removed at the parties’ request. If the Court is to keep its usual pace for granting cases, it will have to grant review in at least a dozen more cases before the end of June. One likely candidate is National Labor Relations Board v. Noel Canning, a case that tests the President’s unilateral power to appoint officials to administrative agencies while the Senate is in recess; that petition will be considered at the Court’s June 20 conference.

Finally, the Court disposed of a few cases summarily – that is, without briefing or oral argument on the merits. In Nevada v. Jackson, a case concerning whether evidence in a criminal case had been wrongfully admitted, the Court held that there was no clear Supreme Court precedent for excluding the evidence. In Sears, Roebuck and Co. v. Butler, a class action case involving product defects in front-loading washing machines, the Court vacated and remanded the case for further consideration in light of its recent decision in Comcast v. Behrend.


Recommended Citation: Tejinder Singh, The week in review, SCOTUSblog (Jun. 7, 2013, 3:32 PM),