A Note on Rhetoric in the Haskell Re-Argument

I forgot to mention this in my long post on the Haskell re-argument, but I thought it presented an interesting example of the costs and benefits of some rhetorical styles.

In Maryland v. King, Justice Scalia wrote the dissent in his usual understated (not) way.  Near the end of that dissent, he wrote “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

During the re-argument of Haskell, Judge Milan Smith (not Judge Randy Smith, who was also on the panel) repeatedly cited this language from Justice Scalia to show that Maryland v. King did control this case.  Justice Scalia, who had sat in on the conference, said that this was what the case meant; therefore, how could the Ninth Circuit judges try to limit it?

It was a nice instance of trying to use someone’s perhaps excessive arguments against him.  Scalia’s “parade of horribles,” which he clearly intended as potential, was used to against him to say that the Court must have already accepted that position.

As a matter of pure logic, I don’t think that works. That the dissent foresees terrible results from a majority opinion does not mean that the majority has accepted those terrible results.  But it is a nice little move – and possibly a reminder to people “parade of horribles” arguments to qualify them carefully.

Hank Greely

1 Response to A Note on Rhetoric in the Haskell Re-Argument
  1. Yes, Scalia ignores the “serious offense” and “detained in custody” limitations in the majority’s bright-line rule.

    His statement also ignores the possibility — a possibility captured by the majority’s rule — that, within 48 hours of the arrest, a judge may determine that the arrest was not supported by probable cause. Under the majority’s rule, if the DNA analysis had not yet occurred the government would be prohibited from conducting it.

    Scalia’s overstatement is probably the result of the true, although shrouded, reason underlying the majority’s rule: Arrestee-DNA laws are reasonable because (1) they only involve a minor intrusion on privacy and because (2) they protect people from potentially dangerous criminals. It is this later justification — a justification that the majority does not clearly state in its opinion, but is really at the core of its reasoning — that Scalia believes is a slippery slope to eviscerating Fourth Amendment protection.

    Scalia is correct. If protecting people (whether they be residents of a jail or society at large) is a legitimate justification, standing alone, for warrantless, suspicionless, searches then the Fourth Amendment’s protections are hollow. But the reach of this safety justification is cabined by the other side of the balance: The degree of intrusion on privacy visited by the particular search. In King, as the majority notes, it is de minimus, especially in light of the reduced expectation of privacy possessed by a person arrested for a “serious” crime who is detained in custody.

    Contrary to Scalia’s “prediction.” The privacy vs. safety balance will change as each new case arises. And, as the majority’s rule recognizes, the Fourth Amendment’s line might shift from reasonable to unreasonable if the arrest is for a non-“serious” crime and/or if the arrestee is never “detained in custody.”


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