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This argument apparently didn’t convince Clarence Thomas, who often shares Scalia’s originalist bent, or Samuel Alito or Chief Justice John Roberts, who do more rarely. As for Breyer, he has generally counseled judges to be cautious about striking down state laws relating to privacy. Plus he has been all over the map about the Fourth Amendment.
What if you care less about the history and more about the present? That’s probably the case for the liberal-moderate justices who joined Scalia, and here’s what should worry them, from University of Virginia law Prof. Brandon Garrett and New York University law Prof. Erin Murphy.
First off, at least 12 million people are arrested each year in this country. Garrett and Murphy write that “according to one study, by age 23, nearly one-third of Americans have been arrested for an offense, not including minor traffic violations.”
Maryland’s law restricts DNA collection to people charged with committing or attempting a violent crime, or with burglary. But as Scalia points out, the majority’s opinion doesn’t really require other states to stay within those limits. “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,” the dissent warns.
Maybe five members of the court won’t actually be willing to go this far, but it’s hard to say why based on Monday’s ruling.
Garrett and Murphy also argue that building a Giant Genetic Panopticon is not the path to solving more crimes. What would help the police most is more DNA evidence from crime scenes, they argue, not from people who are arrested.
To suggest that the state laws the court approved Monday will help catch certain villains who are arrested for unrelated reasons, Kennedy cites Timothy McVeigh, who was pulled over for driving without a license plate after the 1995 Oklahoma City bombing. In theory, in a world in which DNA results come back from the lab much faster than the one we live in, upon arrest McVeigh’s DNA could have been matched with DNA collected at the scene, connecting him to the crime.
In practice, McVeigh was found through good old-fashioned legwork: The police discovered the axle of the truck he’d driven to the bombings, which they traced to a Kansas body shop, where employees helped them put together a sketch that hotel clerks identified as McVeigh. The cops didn’t need DNA to tell them that was the same guy who’d been pulled over — they already had his name.
Surely the wave of DNA collection that the court unleashed Monday will catch some future McVeigh. But processing all that information may gum up the works, proving overall to be a big and misguided distraction. This is the kind of cumulative cost that’s harder to see.
But you might expect the Supreme Court to take it into account before letting the government file away the genetic coding of millions of people it hasn’t proved have done anything wrong.
The Opinion section is produced by the Editorial Department to foster discussion about key issues. The Editorial Board represents the institutional voice of the Star Tribune and operates independently of the newsroom.