When I was in law school, one of the cases I hated the most was Schmerber v. California, 384 U. S. 757 (1966). I hated Schmerber for many reasons, but primarily because of its (in my opinion) conflated analysis of the Fifth and Sixth Amendments and its unabashedly obvious, pro-law enforcement bias resulting in a flawed Fourth Amendment analysis. At that time, I thought the Court was wrong, and I still do.
It's been over 20 years since the US Supreme Court last gave more than a simple citation or two to Schmerber, and now, the Court gives us two decisions that implicate Schmerber in one term! And it's interesting (or at least I find it interesting) the differing ways the Court dealt with Schmerber in those two cases.
Much like the view of the arresting officer (and the dissenting aspects of the Chief Justice's opinion) in the first of these two cases, Missouri v. McNeely, 133 S. Ct. 1552 (2013), my understanding of Schmerber from law school was that, in instances of suspected drunk driving where the suspect refuses a breath test, no warrant was needed to administer a blood test despite the suspect's refusal to consent. And despite lip service from the Schmerber Court about the importance of the Fourth Amendment warrant requirement, for me, Schmerber basically stood as a shining example of the not-so-subtle whittling away of our Fourth Amendment rights. I saw Schmerber as an opening for the government to take a truly Orwellian path that would lead to abuse against the populace by government officials and the dissipation of our privacy rights.
But then along comes McNeely, and my faith is (at least partially) restored! In McNeely, the Court held that my view of Schmerber was wrong. The Court in McNeely clarified that Schmerber did not categorically state that warrants were not required in such circumstances, but that, based on the totality of the circumstances, administering a blood test before obtaining a warrant may be permissible. In the grand scheme of things, that doesn't seem like all that much of a distinction, but I'll take it!
But then, just as I'm getting my hopes up, the Court comes back with Maryland v. King, No. 12-207, 2013 U.S. LEXIS 4165, 2013 WL 2371466 (June 3, 2013). In King, the Court found that DNA testing of arrestees (not convicted felons mind you, simply arrestees; so much for "innocent until proven guilty") did not violate the Fourth Amendment. After McNeely, one could very easily believe that the rule is "if you can, get a warrant". But then King comes along and yells, "Psych!" Whereas McNeely tempered Schmerber's "whatever-law enforcement-wants-is-reasonable" tone, King not only embraces Schmerber's deference to law enforcement, but even boosts it by implying that anything "routine" would pass constitutional muster. I still hate Schmerber, but King is downright bone-chilling.
Most interesting of all, again at least to me, is that Justice Kennedy was literally the swing vote. In McNeely, Kennedy sided with the three female justices and Justice Scalia to rein in Schmerber, but then he jumped ship and sided with the other four justices to place Schmerber on a pedestal in King. Now most pundits predict that Kennedy will be the deciding vote in the two same-sex marriage cases, but if he can be this contradictory with a text as clear as the Fourth Amendment, I almost fear the intellectual gymnastics he'll engage in to create two conflicting decisions regarding same-sex marriage.
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