Our liberty-loving Supreme Court has once again decided to use the Federalist Society Constitution, the one with the word “suckers” in it that omits the Fourth Amendment. You can now be subjected to a not merely warrantless but suspicionless strip-search for being guilty of a minor traffic offense.
The opinions bring to mind Scalia, back when he seemed to be willing for enforce the Fourth Amendment once in a while, critiquing another Kennedy assault on the Bill of Rights: “all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true.” Except that this would be too generous to Kennedy, since the justifications offered by Kennedy, Roberts, and Alito as far as I can tell contain nothing that is relevant. For example, as Liptak notes, Breyer explains the kind of menaces to society who can now be humilated:
According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.
A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.
But wait — Kennedy has a response!
Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.
Well, first of all, so what? Did McVeigh have a semiautomatic rifle stored in his rectum? Would any there have been any threat to public safety if he couldn’t be strip-searched? But leaving that aside, the strip searches authorized by the Court weren’t done by the side of the road (although we may be headed in that direction soon.) Presumably, McVeigh was detained because after being pulled over for driving without license plates the authorities found that he was the suspect in a mass terrorist killing. So what this has to do with people detained for minor nonviolent offenses I haven’t the slightest idea. As I say at the linked post, the arguments offered by the majority opinions are all pretty much at this level of bare assertion and non-sequitur.
Needless to say, this case is even more infuriating when you consider last week’s oral argument. It should be obvious that the Supreme Court owes much less deference to the arbitrary actions of local officials than it does to legislation passed by the United States Congress, but the conservatives on this Supreme Court get it exactly backwards.
…UPDATE: “the kind of logic that can turn a democracy into a police state.” More from Balko and Digby.