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But Justice Sudolnik upheld the use of the biological evidence.
Last June, the Justices upheld the use of the drug by 5 4.
The next day, after hearing the army's case, the court upheld the use of helicopters.
Since the lower court upheld the use of total population, if the court deadlocks it will remain in place.
In a 9-0 decision, with the opinion written by Chief Justice Warren Burger, the court upheld the use of busing as a "remedial technique" for achieving desegregation.
In the Fifth Circuit, a three-judge panel a year ago upheld the use of race as a factor in admissions at the University of Texas at Austin.
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There may also be five votes to uphold the use of total population.
A group of defense lawyers said that upholding the use of wiretaps in this case would "eviscerate the integrity of the criminal justice system".
Judge Posner also cited a 1983 Supreme Court ruling upholding the use of a hidden radio transmitter that helped police trail a suspect.
A decade after upholding the use of roadblocks to catch drunken drivers, the Supreme Court today agreed to decide whether adding a drug-sniffing dog to the checkpoint renders the practice unconstitutional.
ACROSS America, those states that still impose the death penalty have been rushing to resume executions following the Supreme Court's ruling on April 16th upholding the use of lethal injections.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com