Noah Feldman, Columnist

Blood, Breath and the Fourth Amendment

Practical judgment trumps legal analysis at the Supreme Court.

June 24, 2016 at 1:42 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Walk the line.
Photographer: Joe Raedle/Getty Images

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What's the difference between blood and breath? This sounds like a theological question for the Holy and Great Council of the Orthodox Church that’s slated to meet in Crete this weekend. But it was the secular priests of the Supreme Court who took it up Thursday, in a case about warrantless blood tests and breathalyzers for drunk driving.

The court’s majority distinguished between the two kinds of blood-alcohol tests, banning warrantless blood tests because they are invasive while permitting breathalyzers because they aren’t. This compromise was criticized from the left and the right, and I doubt its legal correctness. But it was probably the only conclusion that the court could realistically reach given the dangers of drunk driving.