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Supreme Court Rules for Strip Searches for Even Those Arrested for Minor Offenses

Circling back to the debate about whether the Supreme Court cares very much about its own legitimacy, here’s a ruling that it handed down today.

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs but also public health and information about gang affiliations.

About 13 million people are admitted each year to the nation’s jails, Justice Kennedy wrote.

Under Monday’s ruling, he wrote, “every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.”

Justice Stephen G. Breyer, writing for the four dissenters, said strip-searches were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

I’m just not feeling the bow to judicial restraint here. The Court explicitly ruled that you can get strip-searched if jailed for failure to pay a speeding ticket. That was the underlying case here (and it was actually a false arrest, as the man did pay the ticket).

I should note that Samuel Alito wrote a concurring opinion (here’s the ruling) in the case, saying that there could be exceptions if those arrested are not held with the general population. This appears to be a carve-out for white-collar criminals, but it’s unclear. You may remember Alito’s famous dissent in a case where he would have allowed the strip search of the wife and young daughter of a criminal suspect without a warrant for those activities. This earned him the moniker “Strip Search Sammy.”

John Roberts wrote in a concurrence that the exceptions will “ensure that we ‘not embarrass the future.’” It’s a bit late for that. And it makes a mockery of the notion that they care in any way about that future. I think this was best expressed by Dahlia Lithwick last month in a review of a book about Lawrence v. Texas, the case which overturned state sodomy laws:

[…] the Supreme Court is both supremely open to and supremely closed off from the world around it. That’s why we come to the Court, play by its rules, and tell the Justices stories they like to hear about people who remind them of themselves. The Justices don’t get out much. All of the current nine attended two law schools; their clerks mainly come from seven law schools; cases are argued by a shrinking number of highly skilled oral advocates; a shrinking pool of journalists cover the arguments. Nobody currently sitting on the Court has ever run for elected office, nobody has tried a death-penalty case, and nobody, it’s fair to assume, has been interrupted by the police while he or she was half-dressed in a run-down apartment outside Houston. One Justice bragged recently about not bothering to read the supplemental briefs in the cases; another talks about his distaste for the news media. We may well wonder, then, where they get their information about the world outside their chambers, and how they learn—as Justice Powell learned only very late in his life—how much they don’t know about that world.

Which is why I just don’t believe that the Court as currently constructed feels bound in any way by precedent, and certainly not by disapproval.

More here and here.

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David Dayen

David Dayen