Erin Murphy on Maryland v. King

The forthcoming Supreme Court issue of the Harvard Law Review will feature an essay by NYU Law professor Erin Murphy on the Supreme Court’s recent Fourth Amendment case on DNA searches, Maryland v. King. Professor Murphy’s essay, License, Registration, Cheek Swab: DNA Testing and the Divided Court, argues that King is likely to have an unexpectedly large impact on the future of Fourth Amendment law.

In Murphy’s view, King is significant less for what it said than for what it didn’t say. Presented with the major implications of DNA analysis in the parties’ briefs and the amicus briefs, the Court didn’t address them. Instead, Justice Kennedy issued a majority opinion that seemed unconcerned with those implications. In Murphy’s view, “[t]he failure of the decision to offer express guidance on these matters is thus a silence that speaks at least as loudly as words, especially since the Court not only resisted declaring such safeguards as essential, but also planted seeds suggesting the contrary.” While the majority opinion is vague on certain major points and could be construed narrowly or broadly, unfortunately there is reason to suggest that the Court is likely to construe it broadly in future cases. As a result, she contends, basic bulwarks of Fourth Amendment protection such as warrants and individualized suspicion are potentially threatened.

I always enjoy Professor Murphy’s work, and she may be right. In my view, though, it’s difficult to know. From a legal realist standpoint, a future Supreme Court will construe King pretty much however it wants. It may be that five Justices on the current Court would be willing to read King broadly in future cases. But with no votes to spare from this 5-4 decision, we don’t know how far the Court could go without losing that fifth vote (Breyer, perhaps?). And we don’t know what the composition of the Court will be when the Supreme Court picks up the issue again. Perhaps one or more of the Justices in the current majority will have stepped down by then and the Court will look quite different than it does today. That future Court might narrow King to its facts or even overrule it. So while I agree that King might end up being important beyond its specific holding, I think it’s hard to know. In any event, it’s a very interesting question, and I wanted to flag Professor Murphy’s worthwhile article.