Home / General / Great Moments in Supreme Court Police Statism

Great Moments in Supreme Court Police Statism


In addition to the appalling substantive merits, what is particularly striking about yesterday’s a-strip-search-for-jaywalking-is-reasonable case is that the quality of argumentation was shoddy above and beyond the indefensibility of the holding. The justifications offered by Kennedy and Alito were so weak the mere existence of the opinions makes the country stupider.

There’s something about attempts to evade the Fourth Amendment that tends to produce opinions that involve justifications  that consist of nothing but non-sequiturs, implausible speculation, and stunning leaps of illogic. As it happens, today I was teaching Board of Ed v. Earls, which has the same effect on me that the reasoning in Planned Parenthood v. Casey has on Paul.

In Earls, the court extended an already unwise precedent permitting schools to engage in not only warrantless but suspicionless random drug testing of student athletes to apply to the warrantless but suspicionless random drug testing of any student involved in extracurricular activities. As Ginsburg noted in her dissent, this is transparently “perverse” and “capricious,” as it singles out for testing a group less likely to engage in drug use than students as a whole. But the majority opinion doesn’t get really funny until it tries to argue that students participating in extracurriculars don’t necessarily have greater expectations of privacy or face less dangers than student athletes. The whole argument is such arrant nonsense that one imagines Thomas and his clerks guffawing throughout the whole thing; indeed, on the basis of the opinion they should all perhaps all be subject to lifetime random drug testing for their own saftey, because the alternative to my assumption that they wrote the whole thing on acid is too frightening. (Perhaps your high school experience was different than mine, but I don’t recall the debate club or yearbook planning committee to involve ferquent physical dangers and communal undress.) As Ginsburg said:

Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all.

In fairness, Thomas is on the record as saying that constitutional rights don’t apply to public school students at all, so at least he’s consistent. What excuse the justices who at least nominally believe that the Bill of Rights still applies to state schools have I can’t tell you. Special brickbats to the embarrassing swing vote cast by Stephen Breyer, whose dissent yesterday should tell you how weak the state’s case was.

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  • david mizner

    I’m not sure it’s been pointed out in this space that the Obama administration was on the check-everyone’s-anus side of this issue. What was the DOJ’s reasoning?

    • Holden Pattern

      They’re in the business of law enforcement, not in the business of protecting civil liberties.


      I’m sure you won’t find any interesting arguments in their briefs (or under them), and I doubt that the policy decision is documented anywhere public.

      • firefall

        Well, you wouldn’t want what you passed off as arguments and reasoning available on this one, to protect your presumption of intellect and sanity if nothing else.

      • david mizner

        I get your point, but protecting civil liberties is actually enforcing the law. The DOJ has a whole civil liberties office and everything. Probably in the broom closet, but still.

        • BigHank53

          It used to be in the broom closet. Now it’s in the drip tray under the fridge on the fourth-floor break room. They just shove all the mail in there until it’s so waterlogged and moldy they can declare it a health hazard and incinerate it.

        • Holden Pattern

          Well, in this case, the “law” was up for grabs, and the DOJ came down on the strip-search side. This shouldn’t be surprising — the institutional incentives there are very strong.

      • “They’re in the business of law enforcement”

        That’s ridiculous. “Law enforcement” does not equal “extension of police powers”.

        • Holden Pattern

          On what planet? Cops and prosecutors almost always want more power for themselves — they can always come up with some rationale for why it’s necessary.

    • R Johnston


      That seems unlikely.

    • Incontinentia Buttocks

      They wanna be able to check our anuses, presumably.

      Of course, we can’t expect the state to check itself. That’s why it would be a good idea to pass a constitutional amendment that says something like “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      Of course, the precise wording can be worked out later. But once we had something like that in the Constitution, this kind of nonsense would never fly!

  • howard

    to make a long story short, i was at an event recently at which anthony kennedy was the keynote speaker, and having assured everyone that he was a complete dullard, i was totally surprised that he delivered cogent and coherent remarks for 15 minutes without notes.

    based on his questions and opinions, i wouldn’t have thought that possible, and i’m still trying to figure out how he did it.

    because as scott notes, he and alito are both incredibly dull knives as far as we can tell from their court presence, and it’s embarrassing to think that their shoddy intellects are on regular display at the highest court in the land….

    • R Johnston

      Legal “reasoning” can grossly amplify the extent to which a person’s lack of intellect is obvious, especially at the level of the Supreme Court. Legal reasoning is only loosely, if at all, connected to things like logic and evidence, yet legal “intellectuals” believe themselves to be particularly well versed in logic and argument. When you get to the Supreme Court decision writing level you reach a level of disconnect between ego and ability that is unmatched in the known universe, and it shines through to people who don’t give deference to legal reasoning.

      When Supreme Court Justices aren’t trying to be intellectuals they’re much more ordinary people and things like charisma and general speaking ability–when they actually have them–aren’t overwhelmed by the disconnect between their basic incompetence at putting together ideas and arguments which flow logically from one to the next and their severely overinflated opinions of their intellects.

    • Warren Terra

      I don’t see why you’d be surprised. The one thing our confirmation process does ensure is a certain amount of poise in public speaking, and anyone who’s achieved that job may be an intellectually bankrupt hack, but they’re not lazy (Clarence Thomas being something of an exception). So it’s totally expected that they could prepare and give a fifteen minute talk on a subject of their choosing without looking like a total numbskull.

      • howard

        all i can say, warren, is that i didn’t think that kennedy was even capable of that….

  • Lefty68

    Perhaps your high school experience was different than mine, but I don’t recall the debate club or yearbook planning committee to involve frequent physical dangers and communal undress.

    Very true, although actually my high school debate experience involved frequent overnight trips to tournaments in other cities where we stayed in hotels, typically four kids to a room with two double beds. I had a certain important life experience on such an outing.

    Anywho, why does “communal undress” make student athletes more likely to use drugs?

    • Lefty68

      Screwed up the damned block quotes.

    • Hob

      I would just like to register my undying resentment that nothing like that happened when *I* was on debate team. Maybe I should’ve gone to band camp instead.

  • dms

    So wait…the argument is that if we strip search jocks because they’re used to running around naked, and someone on a debate team got his cock sucked or his ass fucked and liked it, we’re all supposed to become loners if we don’t want our persons touched?

    ‘Course then, we loners will buy some readily available guns, and just blow away several people in our school.

  • Why didn’t Justice Kagan use her legendary powers of persuasion on Justice Kennedy?

  • Joe

    Breyer notes in dissent that the feds seem to accept as a matter of policy the rule asked for by the person in question here. SCOTUSBlog suggests the opinion took awhile to be handed down because there was debate (from Roberts and Alito it turns out) just how broad it is.


    “I join the opinion of the Court. As with Justice Alito, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. Justice Kennedy explains that the circumstances before it do not afford an opportunity to consider that possibility. Ante, at 18–19. Those circumstances include the facts that Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population.”

    He was in general detention for days. Wrongly, apparently, but this injustice wasn’t the point here. He wasn’t merely arrested for “jaywalking” and put in a cell alone somewhere. Justice Breyer emphasizes the narrow nature of what was being asked for here, e.g., your proverbial jaywalker could be asked to take a shower or checked by a dr., the officer allowed to watch from a respectable distance.

    This all is a bit different than forcing twelve year olds to piss in a cup to take chess club. Wrong opinion, not as bad as all that.

  • H-Bob

    One of Justice Kennedy’s rationales for strip-searches was checking for lice ! Methinks it’s time to revisit FDR’s court-packing plan to counterbalance senility.

    • Joe

      Why exactly is checking for lice before putting people in prison in close quarters with other people so silly to you?

      It bears repeating — and potshots at Alito is particularly curious given his narrowing concurrence — that this guy was put in jail for days with other inmates. Making sure such people didn’t have lice on their persons, as yes, some do, would probably be appreciated.

      This is all very embarrassing and the guy shouldn’t have been detained so long in the first place. But, that wasn’t the issue decided. It also wasn’t for “jaywalking.”

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