by TChris

In today’s NY Times Magazine, Jeffrey Rosen argues that John Roberts (who might serve for 40 years if confirmed to the Supreme Court) should be asked about “a Brave New World of constitutional disputes” that could arise during the coming decades. These include:

• Brain fingerprinting: Using neuro-imaging techniques to detect electro-chemical signals could reveal whether an interrogated subject is telling the truth. Would the Court view an involuntary brain scan as a nonintrusive gathering of information rather than a search governed by the Fourth Amendment? Would the Court view brain scans as forcing an involuntary disclosure of thoughts prohibited by the Fifth Amendment’s requirement that individuals not be made to testify against their will?

• Genetic screening: Would the Court decide that the right to procreation and to privacy in intimate decision-making outweighs a state’s interest in prohibiting the creation of “designer babies,” genetically engineered to weed out (for instance) homosexuality, or to assure a child of a preferred gender?

• DNA analysis: If affirmative action continues to pass constitutional muster under some circumstances, will a potential beneficiary of a race-based preference be entitled to rely on a DNA analysis showing the presence of genes that came from Africa?

Other topics: “Old Age and Drug Legalization” and “Property, Free Expression and the Right to Tinker.” Judge Roberts is unlikely to take a meaningful position on any of these issues (arguing that he shouldn’t prejudge any issue likely to come before the Court), but the article is a fun read for those who like to ponder the evolution of constitutional jurisprudence in the 21st century.