Chief Justice John G. Roberts, Jr., calling tests of the DNA of individuals arrested by police 'a valuable tool for investigating unsolved crimes,' on Monday cleared the way for the state of Maryland to continue that practice until the Supreme Court can act on a challenge to its constitutionality. The Chief Justice’s four-page opinion is here. A Maryland state court ruling against the practice will remain on hold until the Justices take final action.One should not read these words as stating that the stay is in effect until the Justices decide whether Maryland constitutionally can take DNA from mere arrestees. That would require two further actions by the Court—"granting cert" and extending the stay while the Court decides the case—both unusual events. The Court receives over 8,000 petitions per year asking it to issue writs of certiorari—orders for lower courts to send the record to the Supreme Court for its review. The court grants on the order of 100 of them. It takes only four votes to grant a petition. (It used to require five.) Justice Scalia once called wading through piles of petitions and supporting materials "the most ... onerous and ... uninteresting part of the job." 
Thus far, the Chief Justice has issued a order (on his authority as a Circuit Justice) temporarily blocking ("staying") the judgment of the Maryland Court of Appeals. The Court of Appeals judgment did not order the state to do anything (although its import hardly could be ignored). It reversed the decision of the state's intermediate appellate court (that had upheld the constitutionality of Maryland's DNA-on-arrest law) and remanded the case to that lower court for further proceedings. (I described some notable features of the original Maryland Court of Appeals opinion on April 26. )
The Chief Justice's order remains in effect only until the other Justices of the Supreme Court get around to voting on Maryland's petition for a writ of certiorari. At that point, one of three things will happen: either (1) the Justices will grant the petition and decide to continue the freeze on the Maryland judgment while the Court reviews the case; (2) the Justices will grant the petition and let the stay elapse while they hear the case; or (3) they will deny the petition and leave the judgment of Maryland's highest court undisturbed. 
Thus, the Court's "final action" might be merely to decide not to act on the merits of the challenge to the constitutionality of the Maryland law. Denying cert has no precedential value. But the Chief Justice's July 30 opinion predicts that the Court actually will review the case and issue an opinion that will uphold the constitutionality of the law. Because of the contentiousness of the constitutional question, the brief opinion is worth dissecting.
The Chief Justice begins with the observation that "there is a reasonable probability this Court will grant certiorari." He ought to know, but the reason he gives is not entirely convincing. He writes that:
Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act. ... The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government. ... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.But this "split" is nothing like a split in the federal circuits on the constitutionality of the federal database law. That kind of split would throw a real monkey wrench into the operation of NDIS, the FBI's National DNA Index System. The split here only affects timing and a fraction of all DNA profiles. That is, for those individuals who are convicted anyway, not taking DNA on arrest in Maryland only delays the time at which their profiles go into the database. Once the offender profiles are entered, a weekly database trawl should link them to any profiles in the database of crime-scene samples. Of course, this delay is not without costs. For example, some arrestees will commit other crimes, up to and including murder, in the period between arrest and conviction.
With respect to arrestees who never are convicted of offenses that trigger inclusion in the database, the state loses the opportunity to trawl the crime-scene database for their DNA profiles. Some of these individuals might be connected to these unsolved crimes, but many will not be. Thus, the split does not shut down the database system. It does reduce its efficiency by an amount that is not clearly known. As the Chief Justice puts it, "the decision renders the database less effective."
Chief Justice Roberts also writes that "the decision below subjects Maryland to ongoing irreparable harm" because "[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury." The latter quotation comes from the previous Chief Justice, who expressed this claim in New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (REHNQUIST, J., in chambers). But the notion that every court order that blocks enforcement of a duly enacted law works an irreparable injury seems extravagant. Does the public suffer irreparable harm when someone on a Fort Lauderdale beach plays frisbee, flies a kite, attaches a hammock to a tree, or swims in long pants—all prohibited?
The more meaningful argument is that the Maryland ruling constitutes "an ongoing and concrete harm to Maryland’s law enforcement and public safety interests." The Chief Justice explains: "According to Maryland, from 2009—the year Maryland began collecting samples from arrestees—to 2011, 'matches from arrestee swabs [from Maryland] have resulted in 58 criminal prosecutions.'" But this statistic is wide of the mark. How many of these 58 prosecutions would the state have foregone had it been unable to enter the profiles at the point of the arrest rather than waiting until a conviction ensued?
In short, the Chief Justice is correct in stating that "in the absence of a stay, Maryland would be disabled from employing a valuable law enforcement tool for several months," but his opinion leaves unresolved the question of just how valuable it really is. This is a matter that surely will receive more attention if and when the full Court actually hears the case.
- CSPAN, Justices in Their Own Words: Granting Certiorari, http://supremecourt.c-span.org/Video/JusticeOwnWords.aspx
- David H. Kaye, Maryland's Highest Court's Opinion on Arrestee DNA Is an Outlier, Forensic Science, Statistics, and the Law, Apr. 26, 2012, http://for-sci-law-now.blogspot.com/2012/04/foot-in-mouth-disease-in-maryland.html
- H. Greely, The Supreme Court and Mandatory Collection of DNA from Arrestees -- Stay Tuned!, http://blogs.law.stanford.edu/lawandbiosciences/2012/07/22/the-action-inaction-distinction-before-nfib-v-sebelius/