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.