Lithwick and Savage bring the depressing news about yesterday’s oral argument in the case in which a 13-year-old young woman was strip-searched by school officials because of an entirely uncorroborated and self-interested (and ultimately inaccurate) accusation that she possessed ibuprofen, without even contacting her parents first. Alas, in the former’s words “it’s plain the court will overturn” 9 CA’s persuasive holding that the search violated Redding’s constitutional rights.
Judging by the reports, the lineup seems to be going according to the worst-case scenario I feared. Ginsburg seems a sure vote to uphold 9CA, with Stevens and Scalia at least reasonably likely. Souter is dubious, and seemed suckered by the state’s irrelevant hypothetical scare scenarios. Alito and Roberts (of course) seem certain votes to overturn and Thomas doesn’t give clues in oral argument but might be the least likely of all given his position on the constitution’s application in schools. I will admit that I held out some hope that this case would awaken Kennedy’s Rip Wan Winkle conscience — my bad. The weaselly “minimalist” opinion likely to emerge in this case is going to be especially infuriating. Frankly, I would have more respect for the Court if they just explicitly adopted Thomas’s position that as long as school officials don’t go so far as to violate a criminal statute they’re not required to put any weight on their students’ privacy and dignity at all. Because given this set of facts, it’s pretty much what they’ll be holding anyway.
And Breyer. Breyer, Breyer, Breyer. A very intelligent and charming man, but between his deference to business interests and deference to petty-dictator state officials also a Clinton-era liberal in the worst sense (and indeed, in Clinton’s defense there is substantial evidence that even he was very reluctant to appoint him.) Lithwick:
This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”
This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—”what was done in the case … it wasn’t just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!” Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.
But Breyer just isn’t letting go. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.” [Unaltered quote--ed.]
I don’t even know what to say to someone who doesn’t see a significant distinction between being strip-searched and wearing gym clothes. To state the obvious, this is the kind of argument that belongs on a third-rate wingnut talk radio show, not in the mouth of a Democratic-appointed Supreme Court justice.
As a coda, djw noted in comments to my first post that conservative bloggers like Tom Maguire and Ed Morrissey to their credit agreed with 9CA that the search was unconstitutional but to their discredit bizarrely seemed to attribute their positions to their heroes Alito and Roberts. (Morrissey: “The question won’t be whether Redding will win. It will be whether it goes 9-0 in her favor. I’d put that at even money.” Uh, care to make it interesting?) Maguire seems to have read the tea leaves, and yet can’t resist a little delusion:
Maybe the court is positioning itself for a switcheroo – my recollection is that sometimes the questoiners are tougher on the side they favor. We should find out in late June.
Yes, that must be it. And when Alito and Roberts compiled extensive records as statist reactionaries, they were just throwing people off the scent. That case where Alito argued that a strip search of a 10-year-old girl based on a deficient warrant should be upheld (dissenting from a holding by well-known civil libertarian radical Michael Chertoff) — it’s a decoy! I sure hope I get into a poker game with Maguire some day….