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Opening Arguments

The 5-4 gotcha

Another interesting and, as they say,  "sharply divided" (5-4) Supreme Court decision:

A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting.

"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority.

But the four dissenting justices said that the court was allowing a major change in police powers.

Not the usual conservative-liberal split, though. Joining Kennedy in the majority were  Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stehen Breyer. Writingthe main dissent was Justice Antonin Scalia, and he was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. So this is one of those cases you have to really search your own beliefs about -- you can't rely on which "side" you agree with.

I'm never eager to be dismissive of Scalia's opinion, but I think he's wrong that this allows a "major change" in police procedures. DNA samples are handled exactly like fingerprint samples always have been -- there is no precedent being set here. The only difference is that DNA offers more reliability.

What makes having your DNA in a database (as opposed to having your fingerprints there) forever, however, is that it can be used for a hell of a lot more than crime detection. If the government (or somebody it grants access to) decides to start messing with you because of some medical predisposition signaled by your DNA, well, gotcha.