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The Fourth Amendment makes strange bedfellows.

Today’s 5-4 U.S. Supreme Court decision in Maryland v. King—that police can take DNA samples from individuals arrested for serious crimes—found the unlikely combination of Justice Antonin Scalia with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joining on the dissent.

States allow the collection of DNA for those convicted of a crime, but lower courts are split on whether states can collect DNA without a warrant from people who have only been arrested. The federal government and 28 states allow the collection of DNA from arrestees.

In 2009, after Alonzo Jay King Jr. was arrested on assault charges in Wicomico County, Md., police obtained his D.N.A. profile by swabbing his cheek. That profile matched evidence in a 2003 rape case, and King was later convicted of that crime. The Maryland Court of Appeals ruled that a state law authorizing D.N.A. collection from people arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Writing for the majority and reversing that court, Justice Anthony M. Kennedy said:

When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s D.N.A. is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

But Justice Scalia and his colleagues typically on the other side of court rulings disagreed, with Scalia summarizing his opinion from the bench—a rare move signaling sharp disagreement among the members of the Court.

Scalia wrote:

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous.

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes. Then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

The Court has yet to issue its decisions on another 25 pending cases, among them the controversial and potentially historical cases involving affirmative action, marriage equality and voting rights.

The next round of rulings are expected on Monday, June 10.

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There will be two great opportunities today to hear from one of the nation’s experts on the state of the judiciary — and particularly the right’s intentional and successful effort to gain control of it.

Who: Michael Avery, author of “The Federalist Society: How Conservatives Took the Law Back from Liberals.”  Click here to read about the book.

Where/When: Offices of the N.C. Justice Center in Raleigh (Click here for directions and parking informationTODAY at 3:00 pm — The author will also be speaking at Flyleaf Books in Chapel Hill tonight at 7:00 pm. Read More

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Close to 100 attorneys, progressive advocates and Triangle-area residents gathered today to discuss the continuing judicial vacancy on the U.S. District Court for the Eastern District of North Carolina, growing numbers of federal judicial vacancies elsewhere, delayed U.S. Senate confirmations of presidential nominees and the ongoing need for increased diversity on the bench.

Speakers at the event, “Why Courts Matter,” included 4th U.S. Circuit Court of Appeals Judge James A. Wynn, Jr., and Andrew Blotky, director of Legal Progress at the Center for American Progress in Washington, D.C.

As Blotky pointed out, there are 82 current vacancies on the federal bench, with an additional 20 vacancies that will occur this year—meaning that nearly 65 percent of the population lives in a community with a courtroom vacancy.

And while it took roughly 35 days for the Senate to get George W. Bush’s nominees to a vote, it’s taken 150 days for Barack Obama’s to get to that point.

Both Wynn and Blotky called for the quick confirmation of fair, impartial, clear-thinking and diverse judges to fill those vacancies—which even when filled, Wynn added, would only solve the backlog. The U.S. Judicial Conference has called for the creation of additional judgeships to meet caseload demand.

The judges who sit on the U.S. District Court for the Eastern District of North Carolina handle one of the heaviest caseloads in the country, approaching nearly 800 cases per judge in 2012. And they’ve been waiting for help for close to eight years now.

The court, based in Raleigh but with courtrooms elsewhere along the eastern part of the state, now has the dubious distinction of having the oldest federal judicial vacancy in the country. The seat&mdashh;opened up on Dec. 31, 2005, when Judge Malcolm J. Howard took senior status—has been unfilled for more than 2,500 days. Read More

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Judge WynnA few seats remain for tomorrrow’s luncheon: Why courts matter (and why North Carolinians should be paying a lot more attention to them): Featuring the Honorable James A. Wynn, Jr., Judge of the United States Court of Appeals for the Fourth Circuit

Please join us as one of North Carolina’s most distinguished jurists shares his thoughts on this and other related questions.

When: Tuesday May 21, 2013 at 12 noon – (Box lunches will be available at 11:45 a.m.)

Where: Center for Community Leadership Training Room at the Junior League of Raleigh Building, 711 Hillsborough St. at the corner of Hillsborough and St. Mary’s Streets).

Cost: $10 – includes a box lunch (lunches will be available at 11:45).
Space is limited – pre-registration required.

Click here to register.

Questions?? Contact Rob Schofield at 919-861-2065 or rob@ncpolicywatch.com.

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As the recent controversial actions of the North Carolina General Assembly make abundantly clear, the future of the courts in this country has rarely been more important. Please join us for a special NC Policy Watch Crucial Conversation luncheon:

Judge WynnWhy courts matter (and why North Carolinians should be paying a lot more attention to them)

Featuring the Honorable James A. Wynn, Jr., Judge of the United States Court of Appeals for the Fourth Circuit

When: Tuesday May 21, 2013 at 12 noon – (Box lunches will be available at 11:45 a.m.)

Where: Center for Community Leadership Training Room at the Junior League of Raleigh Building, 711 Hillsborough St. at the corner of Hillsborough and St. Mary’s Streets).

Cost: $10 – includes a box lunch (lunches will be available at 11:45).
Space is limited – pre-registration required.

Click here to register.

Questions?? Contact Rob Schofield at 919-861-2065 or rob@ncpolicywatch.com.