Judicial strike zone depends on where you’re standing
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.”
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191 comments Add your comment
DB, Gwinnettian
June 23rd, 2009
8:38 am
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.
It’s always a hoot, though, hearing conservatives argue that there’s no place for individual judgment when it comes to the process of adjudication.
jt
June 23rd, 2009
8:39 am
Something is not right with anyone that thinks it is alright to strip search a 13 year old girl.
I would suspect that they are on drugs, therefore I would insist on every chief Justice be strip-searched upon entering the supreme court building. Also, mandatory urinylisis.
Also, strip search(full cavity) the idiots that initially searched this girl. EVERYDAY!
jt
June 23rd, 2009
8:41 am
And then whup THEIR azzes.
TnGelding
June 23rd, 2009
8:46 am
It certainly violated her, but did it violate her rights? I would say yes. This entire drug obsession is unreasonable.
The 5-4 decisions trouble me. Is the law that vague or the judges that ideological or psychological? Maybe we should change it where it takes a 6-3 decision, with 5-4s being sent back with instructions for further litigation.
TW
June 23rd, 2009
8:48 am
As long as said search does not interfere with future ability to buy a gun, a drink, a smoke, or anything else that might put coin in the pocket of power, why should the four guards of the market care about a thirteen yr old girl?
DB, Gwinnettian
June 23rd, 2009
8:54 am
I don’t suppose we could make this thread about judicial temperament and not Andy’s need to GFH?
Doggone/GA
June 23rd, 2009
8:58 am
“The whiner is full of bad blood.”
I think it’s a case of projection.
@@
June 23rd, 2009
9:06 am
A thought, jay….women’s equal rights in a sexual revolution. I’m thinkin’ those women had no idea the negative impact it would have on young girls. Maybe in their selfish pursuits, they didn’t care?
Separate but equal?
It do get confusin’, don’t it?
Unintended consequences are something that liberals rarely take into consideration.
RW-(the original)
June 23rd, 2009
9:12 am
Funny how Jay B will tell us some things that top legal minds can’t agree upon are “clearly unlawful” and then suddenly swerve into the real world that law isn’t always quite so definitive when he wants to paint conservative justices as zealots. The question for me is more that the justices look at the circumstances and then apply the law as they see it along with whatever precedent they feel the need to cite, but do so regardless of the societal status of the petitioner.
As far as 5-4 decisions go, cases don’t generally get to the Supreme Court when they’re easy to figure out.
Doggone/GA
June 23rd, 2009
9:13 am
“I’m thinkin’ those women had no idea the negative impact it would have on young girls. Maybe in their selfish pursuits, they didn’t care?”
What does that have to do with violating her Constitutional right against unreasonable search? This isn’t a “women’s rights” issue…it’s a CITIZEN’S rights issue.
Kayaker 71
June 23rd, 2009
9:17 am
Ms G,
Bet you felt the same way about Letterman when he suggested that some overpaid ballplayer had had a turn with Palin’s 14yr old daughter during the 7th inning stretch. But it’s only Palin and she deserves it, being that radical right wing woman who dared to try to run for public office. There’s a special place in hell for the Lettermans of the world and all of those that condone this type of rhetoric that we call funny. We need to protect our young people against some overzealous school “official” who gets carried away with their 15 min of fame and from the “comedians” of the world who use others to try to make themselves good. News flash….. It ain’t working, Dave.
I Report :-) You Whine :-(
June 23rd, 2009
9:18 am
As His Agenda Collapses On Capitol Hill, Obama Hopes For Press Conference Hail Mary Today
NBC’s Chuck Todd: “The honeymoon is coming to an end for President Obama, but it’s not personal. It’s professional, as now the public appears to be judging the president on some of his actions.” (NBC’s “Nightly News,” 6/17/09)-GOP.com
Time to bury this dimwit.
Constitutional Dependents
June 23rd, 2009
9:21 am
Why don’t we just avoid the long, drawn out never-ending court battles and, for an opening salvo, declare abortions to be illegal and enforce whatever punishment the GOP thinks is appropriate. Let’s bring stonings to America, perhaps. Maybe that will appease them at least for a while. Then, we can focus on other GOP favorites such as eliminating the Department of Education. We could limit government involvement in education to training good soldiers. Let’s see. What next. Freedoms! We should all have the freedom to bare arms. In fact, why conceal anything. Let’s just turn America into a nudist country and forgo the need for stripping, for whatever reason. An open America is a good America.
Doggone/GA
June 23rd, 2009
9:23 am
Enter your comments here
TnGelding
June 23rd, 2009
9:27 am
From the biased, liberal media?
USinUK
June 23rd, 2009
9:30 am
“Something is not right with anyone that thinks it is alright to strip search a 13 year old girl.”
no, something is REALLY not right when SC Justices MAKE LIGHT of strip searching a 13-year old girl – which was what happened during the hearing.
USinUK
June 23rd, 2009
9:31 am
@@ –
“equal rights in a sexual revolution. I’m thinkin’ those women had no idea the negative impact it would have on young girls”
wow – so UNEQUAL is preferable??? being treated as second-class citizens is preferable?? being forced to leave your job because your married or pregnant is preferable?? being unable to get credit of your own because you’re not married and therefore don’t have a co-signer is preferable??
WHAT an asinine statement.
Paul
June 23rd, 2009
9:32 am
Enter your comments here
Paul
June 23rd, 2009
9:33 am
DB, Gwinnettian
Do conservatives rally say there’s ‘no’ place for individual judgment? That absolute?
Or, do they say individual judgment should not take priority over precedent and legislation? Or more in line with RW-(the original)’s 8:12
I think the case decided last week – the one wherein an inmate sued the state of Oklahoma for DNA evidence he said would exonerate him and the Court said he had no constitutional right to the evidence – is perhaps a better illustration. Many were outraged that the Court did not impose ‘justice.’ The Court said law supported the states and that states were moving to bring their laws in line with technology. So one side is about a strict interpretation of precedent and law, the other side is about what they think is correct.
Oh, there are three states with such laws. Oklahoma – it figures. Care to guess which other backward, stuck in the past state is another? Uh-huh – Massachusetts!
Jay
The sports example – balls and strikes – I looked for the source of “Some are balls and some are strikes, but they ain’t nothing till I call them.” Took me to Justice Roberts’s confirmation hearings and a fascinating insight into how his mind works. Not quite in the same way most people split. Sen Cornyn related the three variants of the question. The ‘they ain’t nothing till I call them was the third example.
“Well, I don’t know whether it’s a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning. But I wonder if you have any comment about that. “
Roberts: “Well, I think I agree with your point about the danger of analogies in some situations. It’s not the last, because they are balls and strikes regardless, and if I call them one and they’re the other, that doesn’t change what they are, it just means that I got it wrong.”
Hmmm. There is Truth. Just because I call it something else doesn’t mean I saw the essential nature. Interesting.
Doggone/GA 9:13
As Jay pointed out, the law is full of exclusions when it comes to minors and schools.
Kayaker 71
June 23rd, 2009
9:34 am
Constitutional Dependents,
Declaring abortions illegal would make about 1.37M potential American citizens/yr a little more secure about their future, wouldn’t you say? And when you get all pissy about training soldiers, maybe those who protect your way of life would just as soon not protect the likes of you. But they have no choice, now do they? Appeasement is not what most law abiding citizens are looking for…. most would settle for a Congress who spends a lot less and a judicial branch that enforces our laws. We’ll take that for openers.
jt
June 23rd, 2009
9:37 am
This is ridiculous. Iran does not need our help.
Have you been following the Supreme Court case about middle school strip searches? The case stems from a 2003 Arizona middle school incident where a 13-year-old girl was stripped to her skivvies by two female school administrators, who’d been tipped off by another student that the girl had prescription-strength ibuprofen. You know, Advil. But the school officials found absolutely nothing, even after making the child pull aside her bra and panties to check. Now we have the spectacle of Supreme Court justices grappling with “crotching” – yeah, the word was new to us too – and “ick factors,” as incurring audience laughter over their verbal missteps. After Chief Justice John G. Roberts noted that searching a bra for contraband “doesn’t seem as outlandish as the underpants,” Justice Stephen G. Breyer said, “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, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”
http://www.ibabuzz.com/aparentlyspeaking/2009/04/22/supreme-court-debates-8th-grade-strip-search/
RW-(the original)
June 23rd, 2009
9:38 am
no, something is REALLY not right when SC Justices MAKE LIGHT of strip searching a 13-year old girl – which was what happened during the hearing.
USinUK,
Even when you read Ginsburg’s comments she said they “seemed to” not that “they did” and the convoluted logic she uses to arrive at that observation, that developing 13 year old girls might be embarrassed while she thinks she knows 13 year old boys in the same situation wouldn’t be, is nuts.
If you have some first hand knowledge of what these supposedly insensitive male justices actually did I’d love to hear it.
Paul
June 23rd, 2009
9:39 am
Kayaker 71
I was about to ask Constitutional Dependents if there really is a block of people working to make all abortions illegal, regardless of circumstance and to ask if this wasn’t just another example of ascribing an extreme position to an entire opposition bloc.
Then your 9:34 popped up.
O-kayyyy. I guess now, the question is, is this a case of ask enough people (especially bloggers) a question and you’re sure to find an outlier (which opponents will take as broadly representative) or is it a representative view held by a majority of those who classify themselves as anti abortion?
@@
June 23rd, 2009
9:39 am
DoggoneGA:
Talk to your Senator Feinstein about the Gun Free Schools Act.
“Guns have no place in the hands of our children or in the hallways and classrooms of their schools. Children should be able to go to school without fearing for their safety. Indeed, our schools should be safe havens – places where children are able to escape the violence that engulfs so many of their lives. The time has come to remove guns from the schools of America.”
- Senator Feinstein, August 10, 1994
I’ve never placed a lot of confidence in the judgment of government school officials but obviously Senator Feinstein did.
History of Zero Tolerance
In public schools, “zero tolerance” means that students are quickly suspended or expelled for breaking the law or violating school rules. These policies were initiated on the federal level by the 1994 Gun-Free Schools Act, which responded to several notorious school shootings across the country. The federal law required states to kick out students who brought firearms to school.
Unfortunately, many states and school districts have gone far beyond the federal Gun-Free Schools Act by enacting policies that suspend or expel students for carrying virtually any object that could be considered a weapon, illegal drugs, prescription drugs, and even some drugs available over-the-counter. Some of the most troubling stories and trends have made headlines:
Nationally, students have been subjected to disciplinary action for bringing Midol or Advil to school, bringing a water pistol to school, and taking a slurp of Listerine during school hours. Education Week, October 23, 1996.
In Philadelphia public schools, 33 kindergartners were suspended in 2002 under a tough new discipline policy. The New York Times, December 14, 2002.
An 11-year-old died of asthma because his school’s zero tolerance policy prevented him from carrying an inhaler. The New York Times, November 19, 2002.
In 1998, African-American students comprised 17.1 percent of the student population nationally, but 32.7 percent of those suspended. Racial Profiling and Punishment in US. Public Schools, 2001
Now ‘ya see ^^^ there!….as a result of Feinstein’s legislation, there is now a disparity in how it’s administered. African Americans are being “singled” out.
Maybe you can figure all this out ’cause I’ve quit trying.
Doggone/GA
June 23rd, 2009
9:39 am
“Declaring abortions illegal would make about 1.37M potential American citizens/yr a little more secure about their future, wouldn’t you say?”
No…because a foetus is not a citizen.
Bosch
June 23rd, 2009
9:40 am
Kayaker 71,
Got hyperbole?
jt
June 23rd, 2009
9:41 am
What did I do?
Road Scholar
June 23rd, 2009
9:42 am
Kayaker 71: Letterman did not reference Palin’s 14 yr old in his disgusting joke. Only a conserve would jump to that conclusion. I thought that he was referencing the older daughter, which is still disgusting and uncalled for. He apologized, Palin accepted it, so move on.
IRYW: “Time to bury this dimwit.” Are you offering to off yourself? If not, show some respect to OUR president.
USinUK
June 23rd, 2009
9:42 am
RW –
“Even when you read Ginsburg’s comments she said they “seemed to” not that “they did” ”
I suggest you read the transcript. I did and was thoroughly outraged.
Mrs. Godzilla
June 23rd, 2009
9:43 am
Kayaker 71
At your earliest convenience please list all of the things that I should think and feel.
Paul
June 23rd, 2009
9:43 am
RW-(the original) 9:38
LOL! This is really great! The most progressive voice on the Court makes a sexist generalization to support her point of view! Males are not as sensitive about their pubescent bodies as are Females. Females get embarrassed. Males have a locker room mentality.”
This is rich! Especially from a woman who raised a daughter and a son.
But she’s progressive, so we’ll give her the benefit of the doubt and know she didn’t really mean it.
Constitutional Dependents
June 23rd, 2009
9:45 am
Kayaker 71
Declaring abortions illegal would make about 1.37M potential American citizens/yr a little more secure about their future, wouldn’t you say?
I don’t know. Perhaps, it depends on whether or not you give the parents the death penalty, wouldn’t you say.
And when you get all pissy about training soldiers, maybe those who protect your way of life would just as soon not protect the likes of you. But they have no choice, now do they?
It was a volunteer military, last I checked. Besides, my statement had nothing to do with an educated soldier. I’m quite certain that they are well trained to do what they are supposed to do.
Appeasement is not what most law abiding citizens are looking for…. most would settle for a Congress who spends a lot less and a judicial branch that enforces our laws. We’ll take that for openers.
You seem to think that you speak for a lot of “we’s”. I happen to disagree.
Bosch
June 23rd, 2009
9:45 am
Paul,
You’re too nice – it’s easier to type “got hyperbole?” Saves finger stiffness later.
Have I ever mentioned how good cheesy shrimp grits are, because I’m certainly enjoying my bowl right now.
I rule Andy
June 23rd, 2009
9:48 am
@@ you’re absolutely correct.
David Koresh was staging a “sit-in”, and kids are better off in school with guns.
USinUK
June 23rd, 2009
9:48 am
RW –
case in point: “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.” (Shocked silence, followed by explosive laughter.) “Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know. I mean, I don’t think it’s beyond human experience.”
Breyer saw nothing wrong with a MINOR stripping down to her underwear ““Why is this a major thing to say, ‘Strip down to your underclothing’?” Breyer asked. “How bad is this — underclothes?” ”
Kennedy completely missed the point: “You don’t mind our judging this case as if they were searching for meth?”
TW
June 23rd, 2009
9:48 am
“Unintended consequences are something that liberals rarely take into consideration.”
Iraq much? Voodoo economy much? Deregulate much?
Built-in hypocricy blinders
I rule Andy
June 23rd, 2009
9:49 am
I wonder if Justice Thomas was making jokes about “long dong silver”?
sick
ewwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwweeeeee
Paul
June 23rd, 2009
9:50 am
Doggone GA
A bit ago, the editor of Slate was asked, in a discussion of late-term abortions, at what point, if any, in development a fetus deserves any protections.
She would not answer.
Do you have an opinion?
Road Scholar
[[Only a conserve would jump to that conclusion. I thought that he was referencing the older daughter, ]] Really? The joke was “”One awkward moment for Sarah Palin at the Yankee game,” Letterman said, “during the seventh inning, her daughter was knocked up by Alex Rodriguez.”" I’d offer the people who jumped at the conclusion were people who kept up with events and knew which daughter Gov Palin was with at the game. So it seems only conservatives don’t assume….
But, Letterman said is was a bad joke and he apologized. He said it was his fault. Gov Palin accepted the apology. ’tis over.
Constitutional Dependents
June 23rd, 2009
9:53 am
TW,
Built-in hypocricy blinders
Or, a really major case of denial. Either way, it’s just wrong.
Paul
June 23rd, 2009
9:54 am
G’morning, Bosch!
Too nice? LOL! I’ll bet there’s more than one who would disagree with that. Still and all, it’s all about the discussion.
This is your second day of cheesy shrimp grits breakfast. You’re on a roll. I had to settle for muesli with blueberries.
BTW – how do they raise cheesy shrimp? Is this some genetically altered thing?
Doggone/GA
June 23rd, 2009
9:54 am
“Do you have an opinion?”
Yes, I do. When a foetus as reached the developmental stage where it could be expected to survive outside the woman’s womb any delivery intiated, whether induced or natural, is a birth not an abortion and the living child of that delivery is a citizen.
getalife
June 23rd, 2009
9:54 am
All they had to do was call your parents and get permission when I was in school.
All that for ibuprofen is silly.
But there is good news for American freedom today:
“AP: DHS To End Domestic Satellite Spying Program”
Score one for Harmon.
USinUK
June 23rd, 2009
9:57 am
Paul –
“A bit ago, the editor of Slate was asked, in a discussion of late-term abortions, at what point, if any, in development a fetus deserves any protections.”
there aready ARE protections – you have to get 2 doctors to say that it’s medically necessary. THAT is a protection.
USinUK
June 23rd, 2009
9:58 am
“how do they raise cheesy shrimp? Is this some genetically altered thing?”
are “cheesy shrimp” lounge singers with bad hair and shiny suits?
RW-(the original)
June 23rd, 2009
9:58 am
USinUK,
Those sound more like “devil’s advocate” questions to me than they do making light of the situation. The lawyers are saying the girls civil rights have been violated and they better be fully prepared to explain how and why.
Paul
June 23rd, 2009
9:58 am
Doggone GA
Thanks. So a key element is the fetus has to be delivered from the womb?
g’morning, getalife
Great game, wasn’t it? Your Tigers have grit!
Down, Bosch. That’s ‘grit’ not ‘grits.’
getalife
June 23rd, 2009
10:00 am
If you want a public option for health care, these Senators want you to sign their petition:
http://ga3.org/campaign/healthpetition?qp_source=hc%5fhp
It’s easy.
Paul
June 23rd, 2009
10:00 am
USinUK
But the Slate editor wouldn’t even cite that. Interesting, eh?
And I think you have a point about cheesy shrimp…
Paul
June 23rd, 2009
10:01 am
USinUK
Clarification: one could infer the Slate editor wasn’t in favor of those protections. If she was, it was easy to cite. If she wasn’t…
Matilda
June 23rd, 2009
10:01 am
Funny, when GOP suck-up Jay Leno made a joke about Palin’s teenage daughter being pregnant last year, “John Edwards has really done it now!” there was nary a peep of selective outrage. Glad to see that’s over too.