With the Supreme Court term coming to a close and decisions on major cases starting to flow, Walter Dellinger at Slate takes a look at Stafford United School District v. Redding, a case centered around a 13-year-old girl strip-searched by school officials who suspected she might possess prescription ibuprofen, and links it to the debate over Sonia Sotomayor:
Did this violate her constitutional rights? The relevant constitutional text says: “The right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated.”
You can stare at that text for hours, hold it up to the light, even study it under a microscope, and it still won’t tell you which searches are or are not “reasonable.” Precedent is helpful but not dispositive: Prior cases say that school searches cannot be “excessively intrusive.” In making that determination, it is surely useful for a judge to have some ability to understand how intrusive a “pull up your bra and pull out your panties” search might seem to a 13-year-old girl. (Some dare call this quality “empathy.”) It may also be relevant, of course, to have some sense, as well, of the challenges facing school officials and the potential systemic value of bright-line administrative rules (like zero tolerance for drug possession).
The key point is that all of the justices, no matter how they vote, will necessarily consult factors that are not purely and simply “legal.” Senators who urge upon prospective justices an entirely mechanical balls-and-strikes application of law will be hard-pressed to explain how they could decide a case like Redding by legal logic alone.
Later in that same discussion, Linda Greenhouse picks up the Dellinger thread and makes another important point, raising an interview by Justice Ruth Ginsburg a month ago with USA Today:
“In that interview, Justice Ginsburg spoke candidly about her reaction to the Redding case that Walter mentioned — the strip-search of the 13-year-old girl. Noting that her male colleagues had seemed to make light of the incident during oral argument, Justice Ginsburg told Joan Biskupic:
“Maybe a 13-year-old boy in a locker room doesn’t have that same feeling about his body. But a girl who’s just at the age where she is developing, whether she has developed a lot … or … has not developed at all (might be) embarrassed about that.” Justice Ginsburg also observed that “there are perceptions that we have because we are women” and that these different perceptions can sometimes lead to different outcomes.”
The “balls-and-strikes” metaphor cited by Dellinger comes from Chief Justice John Roberts, who in his own confirmation hearings likened a judge’s role to that of a baseball umpire behind the plate. But if the law were really as simple and straightforward as that, we wouldn’t need nine justices arguing about decisions, and we wouldn’t be having so many 5-4 decisions from the court.
As Greenhouse also notes:
“With 65 decisions so far, 18 have been decided by 5-4 votes, and of those 18, 15 have followed the pattern of the same four on one side (Scalia, Thomas, Roberts, Alito) and the same four on the other side (Stevens, Souter, Ginsburg, Breyer), with Justice Kennedy in the middle. These 5-4 cases cover the full range of the court’s docket, from criminal law to administrative law to military law to the meaning of constitutional due process. It’s hard to look down the list of 5-4s without wondering whether psychology rather than ideology might provide a better explanation for this behavior.”