Fourth Amendment Victory in Advil Strip Search Case

Jacob Sullum | June 25, 2009

Today, in an 8-to-1 decision, the U.S. Supreme Court agreed that Arizona public school officials violated the Fourth Amendment rights of a 13-year-old eighth-grader when they subjected her to a strip search because they thought she might be hiding ibuprofen in her underwear. David Souter wrote for the majority:

What was missing from the suspected facts that pointed to Savana [Redding] was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

At the same time, unlike the U.S. Court of Appeals for the 9th Circuit, the Supreme Court said Kerry Wilson, the vice principal who ordered the search, cannot be held personally liable for the violation because the relevant law was not clear enough at the time. "Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear," Souter wrote, "we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability."

As I've said before, this is the best result that reasonably could have been expected, but I am surprised by the size of the majority, especially since it seemed there was a good chance the Court would uphold the search. The lone dissenter was Clarence Thomas, who has always taken a narrow view of minors' constitutional rights in the context of school and looked askance at judicial efforts to constrain administrators' authority.

Notably, the position taken by the majority is less deferential to school officials than the one urged by the Obama administration. As common sense would suggest, the Supreme Court considered it relevant not only that there was no reason to think Savana Redding had pills in her crotch or cleavage but also that the pills in question did not pose a significant threat to students' health or safety:

Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

By contrast, Acting Solicitor General Edwin Kneedler argued that the Court should defer to school officials' judgment about the importance of enforcing their mindless "zero tolerance" policy for drugs and find the strip search unreasonable only because there was insufficient reason to believe it would reveal contraband.

The decision is here. Previous Reason coverage of the case here.

Comments

|6.25.09 @ 12:31PM|#

Thomas' dissent - which amounted to saying that the court would regret allowing people to hide drugs in their underwear - was totally douche.

Who was saying that Thomas was "the most libertarian" justice not long ago?

Kyle Jordan|6.25.09 @ 12:32PM|#

Yeah, we've been talking about this for a couple of hours or so.

;)~

Still good to see on the big page. Maybe it'll make other people...

hopeful

...that our government and courts are not full of the basest of dullards.

|6.25.09 @ 12:33PM|#

*huge sigh of relief*
Oh thank you Geebus.

Fluffy|6.25.09 @ 12:34PM|#

Thomas' dissent is kind of out of left field, since he seems to be saying that he doesn't even want to talk about the issue at hand, but goes off on a tangent about letting school district personnel act in loco parentis which, he seems to presume, would allow school personnel to basically do whatever they wanted at all times, without requiring any justification.

This is an extraordinarily conservative, one might say reactionary, position, since it seems to rely on nostalgia for an entrenched institution's previous way of doing things, as well as an instinctive deference to authority, rather than any legal principle I can think of.

Brett Stevens|6.25.09 @ 12:37PM|#

Would we feel the same way about a plastic (undetectable using metal detectors) yet functional gun?

Rights aren't absolute. In fact, they're kind of an illusion because people do stupid and irresponsible things and always will, and the rest of us want protection against their stupidity.

Never thought I'd agree with Clarence Thomas.

Mike|6.25.09 @ 12:37PM|#

As much as I hate to do it, I give kudos to Stevens and Ginsburg for being the only two justices who thought that the school officials should be held personally liable. If I were that girl's father, an "oops, sorry--we won't do that again" wouldn't quite cut it.

hammeredHead|6.25.09 @ 12:39PM|#

Very disappointed in Thomas. There are no exceptions to the fourth. He was reaching there.

Ten Years After|6.25.09 @ 12:39PM|#

"Thomas' dissent is kind of out of left field"

No panty seach, no Coke pube.

|6.25.09 @ 12:39PM|#

Did Thomas mention the professionalism of school officials?

Also, I love the "You shouldn't have strip searched a little girl, but that's OK, la-di-da" approach.

Bare minimum: Put the principal and the nurse on the sexual predator registry.

Old Bull Lee|6.25.09 @ 12:39PM|#

I'm really surprised at Thomas here too, but he's still the most libertarian justice we currently have.

Hugh Akston|6.25.09 @ 12:41PM|#

So what they did was wrong, but the administrators aren't going to be held responsible. The very definition of American justice.

|6.25.09 @ 12:42PM|#

Hugh,

"If the principal does it, it's not a crime."

|6.25.09 @ 12:42PM|#

Thomas' dissent sounds a lot like It Takes A Village.

Kyle Jordan|6.25.09 @ 12:42PM|#

"Would we feel the same way about a plastic (undetectable using metal detectors) yet functional gun?"

Show me a gun that is completely made of polymer or non metallic/magnetic material and I'll entertain your argument.

And if a K-12 aged child can make a functioning pistol out of such material that can perform on a lethal level, I'd be willing to bet that they would carry out whatever they plan on doing with the gun regardless of its existence.

Paul|6.25.09 @ 12:43PM|#

Today, in an 8-to-1 decision,

Very nice... and I haven't read the decision, but based on comments above, I'm highly disappionted in Thomas. However, as I've said before, one should be careful not to pick a 'favorite' judge. You'll always be disappointed.

|6.25.09 @ 12:44PM|#

I believe the SCOTUS remanded to the 9th the question of whether the School District could be sued.

Maybe they let the family sue the school district for asinine policies that lead to these types of situations

Jennifer|6.25.09 @ 12:46PM|#

Love the implication of Thomas' dissent: strip-searching innocent Americans is preferable to letting the occasional American get away with illicit Advil possession.

I'm really surprised at Thomas here too, but he's still the most libertarian justice we currently have.

If he's a libertarian then the difference between libertarianism and totalitarianism is too small to be worth mentioning.

Libertarianism: giving school administrators the right to stare at little girls' pudenda since 2009!

|6.25.09 @ 12:47PM|#

Take a moment to savor the irony of "sovereign" immunity in a country that fought two wars in order to not be ruled by a king any longer.

|6.25.09 @ 12:47PM|#

I would also think that it would be more difficult to conceal a gun inside one's underwear than a pill.

Kyle Jordan|6.25.09 @ 12:48PM|#

"Love the implication of Thomas' dissent: strip-searching innocent Americans is preferable to letting the occasional American get away with illicit Advil possession."

Exactly.

Tricky Prickears|6.25.09 @ 12:49PM|#

"Would we feel the same way about a plastic (undetectable using metal detectors) yet functional gun?"

What was missing from the suspected facts that pointed to Savana was any indication of danger to the students...

|6.25.09 @ 12:49PM|#

This is definitely an exception to my "Thomas is only right in dissent" thesis.

|6.25.09 @ 12:50PM|#

I just can't believe they didn't manage to fuck this up. Good day for the SCOTUS. A rarity, I know.

Brandon|6.25.09 @ 12:51PM|#

Thomas' puritanical regard for order, discipline and authority shines through in his dissent. He cites the school's history of problems with drug abuse and Redding's past violations in particular as a context for the search that makes it reasonable. He says public schools need to have wide latitude to do what is necessary to maintain a safe and orderly environment.

I say, if the administration has lost control of the school to the point where it feels searching a girl's underwear for painkillers is reasonable and crucial to maintaining order, and the girl's history of violating school policy is so extensive as to justify searching her underwear, the solution is to fire the administrators and expel the girl, not search her underwear.

|6.25.09 @ 12:52PM|#

They said the school officials couldn't be sued, but did they say they couldn't be bludgeoned over the skull by the girl's parents? I have a crowbar they can use.

Tricky Prickears|6.25.09 @ 12:55PM|#

At the same time, unlike the U.S. Court of Appeals for the 9th Circuit, the Supreme Court said Kerry Wilson, the vice principal who ordered the search, cannot be held personally liable for the violation

So, this negates any civil action against the VP? What about the school district? What good is determining that her rights were violated if there is no legal recourse? "Now don't you do that again, you naughty Vice Principal."

Bill|6.25.09 @ 12:55PM|#

yo, fuck Clarence Thomas.

O.K., that was my initial reaction when I first read about it.

Thomas says:

"Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

O.K., great. As a general truism, that may very well be a - uh - truism.

But what judges supposedly are qualified to do is recognize patently unconstitutional actions of low-level bureaucrats when they see it.

I'm disappointed in Thomas on this one.

And WTF? The principal and others get off scot-free? Yeah, if that were my daughter (and I have 11-y.o and 15 y.o. daughters), I'd be mightily pissed.

Take America On!|6.25.09 @ 12:55PM|#

If he's a libertarian then the difference between libertarianism and totalitarianism is too small to be worth mentioning.

Libertarianism: giving school administrators the right to stare at little girls' pudenda since 2009!

Don't worry, Jennifer, no one expected a substantive reply from you, anyway.

Fluffy|6.25.09 @ 12:56PM|#

Would we feel the same way about a plastic (undetectable using metal detectors) yet functional gun?

Rights aren't absolute. In fact, they're kind of an illusion because people do stupid and irresponsible things and always will, and the rest of us want protection against their stupidity.

Yes. And the Thomas dissent actually does a good job of pointing the way why.

Thomas argues that it's impossible for schools to function unless administrators are given the widest possible latitude to act in loco parentis.

The problem is that students are also citizens, and therefore it is not Constitutional to give any employee or agent of the state the right to act in loco parentis if doing so violates an enumerated right.

If you want to give that kind of blanket power to the educators in charge of your kid, select a private institution. Then the adminstrators there won't have to worry about the Fourth Amendment because they aren't agents of the state.

|6.25.09 @ 12:56PM|#

+1 on the disappointment with Thomas. I don't see any wiggle room in the dissent either. Also very disappointed in the notion that the administrators cannot be held personally responsible. I think that's the only (peaceful) way we'll reign in the abuse of authority that seems to be rampant in government agents.
-K

|6.25.09 @ 12:58PM|#

Could Thomas be worried that if a school acting in loco parentis is prohibited from some act, then the door is opened for parents to be prohibited from doing it as well? A stretch I know.

Invisible Finger|6.25.09 @ 12:58PM|#

The lone dissenter was Clarence Thomas, who has always taken a narrow view of minors' constitutional rights in the context of school and looked askance at judicial efforts to constrain administrators' authority.

Or he's just a pervert.

Big Bryan|6.25.09 @ 1:01PM|#

I thought the majority was well reasoned, allowing for such searches in instances where there was clear danger or some indication that drugs could be hidden in underwear.

Thomas' dissent, well, it was pretty, douchebagical. I mean, really, this isn't going to start a rash of underwear hiding drug pushers, since schools would then just search there. I also wonder, since there are even more private places to hide drugs, whether Thomas thinks the school should have been able to do a full cavity search? I mean, come on, these kids were going to do the advil at lunch!

I could go either way on the immunity. Its a nice compromise. But at teh same time, the violation seems so clear, I'm not sure how you grant the immunity.

Fluffy|6.25.09 @ 1:02PM|#

Could Thomas be worried that if a school acting in loco parentis is prohibited from some act, then the door is opened for parents to be prohibited from doing it as well? A stretch I know.

I don't think it's that complicated. Thomas is just reasoning the way O'Connor used to reason about things like zoning:

1. Public schools are important and we've always had public schools.

2. Public school adminstrators need wide powers in order to run public schools efficiently.

3. Therefore, the Constitution can not possibly prevent school administrators from doing whatever the hell they want, regardless of what the text of the Constitution may appear to say.

Classic outcome-based reasoning in deference to existing institutions.

|6.25.09 @ 1:04PM|#

Sigh.

I used to fantasize about taking over as emperor and getting rid of all of the Justices but Thomas.

Now I have to fantasize about getting rid of all of them.

|6.25.09 @ 1:04PM|#

WTF is wrong with Thomas?

The idea that it is preferable to strip-search a young, innocent girl rather than have the possibility of drugs being present in the school is so drug-war-insane that it's mindbending. This is the point we've come to: the ultimate goal, regardless of the methods, is to attempt (and fail) to root out all drugs, no matter how extreme, absurd, or egregious those methods may be.

Brown Shoes Don;t Make It|6.25.09 @ 1:04PM|#

Perhaps Thomas would cover that girl in chocolate syrup (and strip-search her again).

Take America On!|6.25.09 @ 1:05PM|#

either schools are permitted to do things that ensures the safety of their students, or they are not. I am perplexed how it can be said that a school is effectively the "parent" when the parent is not present, but does not have the powers of a parent. Does this mean that we won't hear about liability lawsuits if a child dies from drug use in the school?

Xeones|6.25.09 @ 1:06PM|#

Or he's just a pervert.

Well, we already knew that.

Kyle Jordan|6.25.09 @ 1:09PM|#

"The idea that it is preferable to strip-search a young, innocent girl..."

Well, when you put that way I agree with him.

Then again, I'm a pervert too.

|6.25.09 @ 1:16PM|#

I am perplexed how it can be said that a school is effectively the "parent" when the parent is not present, but does not have the powers of a parent.

Is it really that perplexing?

There are limits to what school personnel can do -- schools administrators can't slap children the way a parent can to discipline them -- or do you think that is perplexing as well?

Kyle Jordan|6.25.09 @ 1:19PM|#

"There are limits to what school personnel can do -- schools administrators can't slap children the way a parent can to discipline them "

Well, I don't know if parents can slap kids anymore either. They can do the act, but someone will go off claiming abuse.

Fluffy|6.25.09 @ 1:20PM|#

either schools are permitted to do things that ensures the safety of their students, or they are not. I am perplexed how it can be said that a school is effectively the "parent" when the parent is not present, but does not have the powers of a parent.

This is the type of reasoning I am talking about. Even the SCOTUS will do this - quite often, in fact; we were just lucky they didn't do it this time.

To me it seems pretty simple and straightforward that if the public schools can't be run in a way that accords with the Bill of Rights, then the public schools will either just have to go, or you'll just have to accept that they won't run the way you want them to run. No skin off my ass at all.

"We've given the schools this mission, therefore they must have this power" is what you're saying. And to that I've got to say, "Well, they don't have that power, so I guess you have to abandon the mission. Or accept failure. Pick."

SpongePaul|6.25.09 @ 1:20PM|#

This could be a blow against all the zero tolerance laws. since the court ruled that the strip was unlawful due to the lack of danger and quanity to students. So if i read it in a Libertarian way. to strip search you must now have cause and belief of a danger or large quantiy of drugs.

SpongePaul|6.25.09 @ 1:21PM|#

This is where i read the zero tolerance strike down:

He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

kinnath|6.25.09 @ 1:21PM|#

Anything short of summary execution of the school officials involved is a clear disappointment.

¢|6.25.09 @ 1:25PM|#

There are no libertarians in government. Thomas is as close as we're ever going to get. We know from his prior rulings that he implicity views public schools as prisons, so we knew how he'd come down on this.

Based on his known extra-judicial opinions on the matter, he might have some long-term strategery in mind. Probably not.

the majority is less deferential to school officials

Like hell.

"Yeah, they probably shouldn't have done that, but we're not really sure, and the school is the state, so eat shit. Bye."

|6.25.09 @ 1:26PM|#

Way to go SCOTUS. I would have bet that you would have fucked up.

Thomas... I will forevermore refer to you has the Pedophile Justice. If the ends justifies the means, what is the fucking point of having a constitution?

|6.25.09 @ 1:29PM|#

"Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

The role of second-guessing (evaluating) policy as written and as enacted by the executive (that includes school systems) is the very definition of a Judges' role, and in particular that of a Supreme Court Justice. Under this reasoning, Thomas has effectively argued that there is no role for the Supreme Court Justices.

May I be the first to accept his resignation?

The school's policy itself is nonsense. Under this policy, my daughter would be unable to carry her epi-pen or any other remedies for severe allergic reactions - which don't always allow time to get the length of a building into a nurse's office. I *might* allow this if the school assigns a responsible adult to accompany her at all times with proper supplies. I do wonder how many teachers and administrators have ibuprofen in their desk drawers. I guarantee the vice principal keeps maalox in her desk as well, especially after this ruling.

On a related note, I recall an incident in 4th grade - far too long ago - when most of the class was "acting out" and got punished by being kept after school. I successfully argued on the spot that the punishment of the few people who were well-behaved was a constitutional violation. The argument was accepted as valid and only those who were misbehaving were kept after school.

Constitutional rights extend to all citizens, in school or out, regardless of age.

..|6.25.09 @ 1:29PM|#

I'm highly disappionted in Thomas

It was an 8-1 decision! Leave it to the libertarians to find the cloud behind the silver lining.

|6.25.09 @ 1:29PM|#

the Supreme Court said Kerry Wilson, the vice principal who ordered the search, cannot be held personally liable for the violation because the relevant law was not clear enough at the time.

And whose fault is that?

*glares at Thomas*

Tricky Prickears|6.25.09 @ 1:31PM|#

Damn, maybe they thought she had a cell phone.

Some Guy|6.25.09 @ 1:37PM|#

Stay classy, Thomas...

|6.25.09 @ 1:43PM|#

The school's policy itself is nonsense. Under this policy, my daughter would be unable to carry her epi-pen or any other remedies for severe allergic reactions - which don't always allow time to get the length of a building into a nurse's office.

I believe this isn't true. I believe the school's policy is that the school had to be notified if your child will have any meds -- prescription or OTC.

I may be wrong, but that's what I thought the rule was.

|6.25.09 @ 1:44PM|#

either schools are permitted to do things that ensures the safety of their students, or they are not.

False dichotomy much, Mr. Bootlicker?

|6.25.09 @ 1:45PM|#

Well, I don't know if parents can slap kids anymore either. They can do the act, but someone will go off claiming abuse.

Sure someone can claim it, but parents are allowed to slap their children.

My sisters son tried that when he got slapped by his mom. He called the cops on my sister and the cop basically told my nephew -- your mom has every right to slap you when you act up.

Frank -n- Weiner|6.25.09 @ 1:47PM|#

"Libertarianism: giving school administrators the right to stare at little girls' pudenda since 2009!"

I seriously doubt the principal just stood their staring at her gina.

|6.25.09 @ 1:48PM|#

I am perplexed how it can be said that a school is effectively the "parent" when the parent is not present, but does not have the powers of a parent.

My daughter turns 15 soon. I'd question to what extent that even I, as a parent, can shake her down and strip her.

Unless my daughter is obviously suffering from meth or heroin habit, I will stay out of her pants. And even then, the yuck factor is so overwhelming that I still couldn't justify such a search. Apparently the the Pedophile Justice Thomas and the administrators in Safford don't suffer from said yuch factor.

Take America On!|6.25.09 @ 1:48PM|#

Bootlicker? Keep in mind that the Supreme Court still agrees with me: the only reason that the school lost on this case is because there wasn't enough evidence to proceed with a search this invasive. Had there been enough evidence, the school would still have been justified in conducting a strip search.

So, if schools are supposed to be the parents, does it then follow that parents are not allowed to strip-search their kids?

MattXIV|6.25.09 @ 1:50PM|#

Thomas' dissent is kind of out of left field, since he seems to be saying that he doesn't even want to talk about the issue at hand, but goes off on a tangent about letting school district personnel act in loco parentis which, he seems to presume, would allow school personnel to basically do whatever they wanted at all times, without requiring any justification.

I definitely noticed that. Thomas's view of in loco parentis, in contrast to the actual authority of parents over their children, appears unlimited.

|6.25.09 @ 1:52PM|#

This ruling is an 8-1 endorsement of the concept of empathy in jurisprudence, as recently articulated by Barack Obama.

From the decision:

Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure….The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts maybe.

The test used to determine whether the student had an expectation of privacy which was violated is an examination of her subjective feelings, not some legalistic formula. The majority even considered how a person in her particular circumstances (adolescent, being interrogated) is likely to have a different subjective experience from an older person, or an adolescent being exposed in a different situation, such as changing for gym. (Gee, I wonder what they'd make of the "We waterboard our troops in SERE School" argument?)

Oh, and btw - the sole woman on the court was the justice who made the rest see how their own experiences in other circumstances are not directly applicable to the question of this search of this girl.

Overall, a pretty convincing thrashing of the arguments conservatives have been making about Sonya Sotomayor and the judicial process in general for the past month.

|6.25.09 @ 1:54PM|#

This ruling is an 8-1 endorsement of the concept of empathy in jurisprudence, as recently articulated by Barack Obama.

From the decision:

Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure….The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts maybe.

The test used to determine whether the student had an expectation of privacy which was violated is an examination of her subjective feelings, not some legalistic formula. The majority even considered how a person in her particular circumstances (adolescent, being interrogated) is likely to have a different subjective experience from an older person, or an adolescent being exposed in a different situation, such as changing for gym. (Gee, I wonder what they'd make of the "We waterboard our troops in SERE School" argument?)

Oh, and btw - the sole woman on the court was the justice who made the rest see how their own experiences in other circumstances are not directly applicable to the question of this search of this girl.

Overall, a pretty convincing thrashing of the arguments conservatives have been making about Sonya Sotomayor and the judicial process in general for the past month.

Timmy|6.25.09 @ 1:59PM|#

joe comes back from oblivion and promptly fucks up the HTML tags.

You promised to go away and stay away. Oh, and take the Take America idiot with you.

Zeb|6.25.09 @ 2:00PM|#

I am still having a hard time with the fact that high school students are forbidden from having common, over-the-counter medications or their own prescriptions at school. That is troubling enough without considering the ridiculous overreaction that is the subject of this case. I know I could handle the decision of whether and when to take an aspirin when I was 14.
It also has always seemed to me that in loco parentis rights of schools should be subordinate to those of actual parents. I.e. if the parent thinks that his kid should take some Advil to school or shouldn't have their bag searched without a warrant, then the school should have to accept that.

Meanwhile, Back In Tehran...|6.25.09 @ 2:01PM|#

Neda Soltan's family 'forced out of home' by Iranian authorities:

The Iranian authorities have ordered the family of Neda Agha Soltan out of their Tehran home after shocking images of her death were circulated around the world.

Neighbours said that her family no longer lives in the four-floor apartment building on Meshkini Street, in eastern Tehran, having been forced to move since she was killed. The police did not hand the body back to her family, her funeral was cancelled, she was buried without letting her family know and the government banned mourning ceremonies at mosques, the neighbours said.

http://www.guardian.co.uk/world/2009/jun/24/neda-soltan-iran-family-forced-out

Spoonman|6.25.09 @ 2:01PM|#

FUCKBALLS, joe is back.

|6.25.09 @ 2:02PM|#

Obama defining empathy: I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.

I'm glad this court was was able to understand and identify with the "hopes and struggles" that an adolescent girl would experience in this particular situation, instead apply "some abstract legal theory" and blinding themselves to circumstance and experience. Doing so undoubtedly helped them to reach a just decision.

|6.25.09 @ 2:03PM|#

KTHXBAI.

Fluffy|6.25.09 @ 2:04PM|#

Oh, and btw - the sole woman on the court was the justice who made the rest see how their own experiences in other circumstances are not directly applicable to the question of this search of this girl.

Overall, a pretty convincing thrashing of the arguments conservatives have been making about Sonya Sotomayor and the judicial process in general for the past month.

Yes, but all of that reasoning was superfluous. It was only made necessary because other bad SCOTUS decisions are on the books that dilute the 4th Amendment. If we shed all that baggage, we wouldn't need any empathy - we'd just need to read the 4th Amendment and see that there was no warrant here, no exigent circumstances here, and no probable cause here to believe a law had been broken, and the search would be out.

The judges wouldn't have to use their feelings if a lot of crap decisions pissing on the 4th amendment and a lot of crap decisions ruling that students at public schools aren't actually citizens weren't held up as precedents.

Jennifer|6.25.09 @ 2:05PM|#

There are no libertarians in government. Thomas is as close as we're ever going to get. We know from his prior rulings that he implicity views public schools as prisons, so we knew how he'd come down on this.

Which is why I say if he's a libertarian, then the word is meaningless. I still remember how utterly appalled I was a few years ago, when the TSA first implemented its short-lived "no liquids whatsoever on a plane" policy, and one of the libertarian posters here argued that's all right, since there is no Constitutional right to carry drinking water on a plane.

Yeah, well, there's no constitutional right to keep your clothes on, either. To hell with the idea that any government action not explicitly forbidden by the Constitution is therefore allowed.

Frank -n- Weiner|6.25.09 @ 2:05PM|#

@joe from Lowell

If you're really joe, we've got some Obama questions for ya. Why not stick around...

|6.25.09 @ 2:07PM|#

Now, be polite. I didn't come here and jack the thread, so don't you jack the thread, either.

Zeb|6.25.09 @ 2:07PM|#

While I detest the behavior of the school officials in this case, I really wish people would can the accusations of pedophilia on the part of the school people (and now Thomas), unless there is some evidence of a sexual motivation that I have missed here. Strip searches do happen (it happened to me and I am pretty sure there was no sexual gratification achieved by anyone involved) and petty bureaucrats will be petty in enforcing stupid zero tolerance policies. I'm sure it was very unpleasant for the girl, but that is not sufficient to constitute sexual assault.

|6.25.09 @ 2:08PM|#

"I'm glad this court was was able to understand and identify with the "hopes and struggles" that an adolescent girl would experience in this particular situation, instead apply "some abstract legal theory" and blinding themselves to circumstance and experience. Doing so undoubtedly helped them to reach a just decision."

Personally, I'd prefer they apply the "abstract legal theory" of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.", myself.

|6.25.09 @ 2:12PM|#

what did you expect from clarence thomas, anyway?

let's be honest. the only constitutional rights a citizen ever has are those rights that he or she is willing to 1) kill for, and 2) die for.

|6.25.09 @ 2:13PM|#

"The Constitution don't need to interprettin', dagnabbit!"

Warty|6.25.09 @ 2:17PM|#

Joe deserves to be killed. His blood will replenish the tree of liberty.

Just getting it out there. No offense intended, at least not until the killin'.

Free Markets, Free Minds, Free|6.25.09 @ 2:19PM|#

The Washington Times reports:

The White House has rescinded the invitations to Iranian diplomats to attend July 4 celebrations at U.S. embassies around the world.

White House press secretary Robert Gibbs said nobody from Iran RSVPed to come, and at this point, the invitations are no longer valid.

"Given the events of the past many days, those invitations will no longer be extended," Mr. Gibbs said.

Gimlet|6.25.09 @ 2:20PM|#

Is there even one promise Obama is willing to keep?

Thomas Jefferson|6.25.09 @ 2:21PM|#

May it be to the world what I believe it will be, (to some parts sooner, to others later, but finally to all), the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self government. That form which we have substituted restores the free right to the unbounded exercise of reason and freedom of opinion. All eyes are opened, or opening to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born ,with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god. These are grounds of hope for others.

|6.25.09 @ 2:21PM|#

joe comes back to score points on conservative. Continues to miss that fact most here are libertarians or anarcho-capitalists. Awesome.

Jennifer|6.25.09 @ 2:23PM|#

While I detest the behavior of the school officials in this case, I really wish people would can the accusations of pedophilia on the part of the school people (and now Thomas), unless there is some evidence of a sexual motivation that I have missed here. ... I'm sure it was very unpleasant for the girl, but that is not sufficient to constitute sexual assault.

Ah, so it's the conscious motivation of the attacker, not the effect on the victim, that matters? "Hey, witches! I'm not torturing you to death because I'm a sick sadistic fuck with a libido twisted like a Mobius pretzel; it's because I want to save your immortal soul. Love, Torquemada."

Thomas Jefferson|6.25.09 @ 2:24PM|#

"Continues to miss that fact most here are libertarians or anarcho-capitalists. Awesome."

Why the surprise? He never was very good with facts.

|6.25.09 @ 2:25PM|#

It's true: memory distorts things.

I expected somebody would have a thought about the subject of judicial empathy and how it applies to this decision. It's been a rather important dispute.

I was mistaken.

Thomas Jefferson|6.25.09 @ 2:26PM|#

"I expected somebody would have a thought about the subject of judicial empathy and how it applies to this decision."

I have a thought:

It's bullshit.

|6.25.09 @ 2:28PM|#

joe - if that's really you - welcome back, hope you'll stay. ChiTom isn't nearly as much fun to argue with.

Gimlet|6.25.09 @ 2:28PM|#

But I expect my auto mechanic to utilize empathy when fixing my truck. I do. That's why I gave my truck a name.

|6.25.09 @ 2:29PM|#

Sadly I think this case is going to be limited by its facts at the lower court level. The facts are so outrageous and the drug in question so innocuous that lower courts will have a very easy time distinguishing it in other cases. Judging from this snippet

"What was missing from the suspected facts that pointed to Savana [Redding] was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable."

it seems to me that in a case where the drug in question was more dangerous (like say the foul weed) and there was more reason to think the student was actually carrying the stuff in their underwear, a strip search would be a-ok under this precedent. I am glad the girl won. But I don't think this case is as good of news as it first appears to be.

Gimlet|6.25.09 @ 2:30PM|#

What if the roles were reversed? What if the student was a boy and the VP was a super hot babe.

Discuss.

Frank -n- Weiner|6.25.09 @ 2:32PM|#

"What if the roles were reversed? What if the student was a boy and the VP was a super hot babe."

Empathy would become envy.

|6.25.09 @ 2:35PM|#

"The grains of sand on this beach represent the promises and assertions Obama has made. If you look at this one grain and none of the others, you'll see that Obama was 100% right."

Sparring with lightweights on the Matt Yglesias has destroyed what logic he used to be able to muster.

Any takers on whether he was "Take On America!" from earlier?

MattXIV|6.25.09 @ 2:36PM|#

So, if schools are supposed to be the parents, does it then follow that parents are not allowed to strip-search their kids?

In the case of a small quantity of pills with OTC NSAID ingredients, I'd say no, due to the combination of the invasiveness of the search and the weak justification in terms of the child's well-being. I don't think it's enough to justify taking custody away, but in a pattern of other examples of egregious parenting it would move me towards that conclusion. Both the ends and the means count - it's acceptable to slap your kid for doing something seriously wrong (my mom gave me a good slap for shoplifting some candy when I was 4 and I agree with her decision), but it's not acceptable to slap your kid for shits and giggles. Even if you grant schools full in loco parentis authority, they still should be required to meet the standard of exercising that authority in a way that corresponds to acceptable parenting.

Warty|6.25.09 @ 2:38PM|#

That was TAO, dude.

joe, Clarence Thomas keeps making a monkey of himself, doesn't he?

kinnath|6.25.09 @ 2:39PM|#

I was mistaken.

Frequently

|6.25.09 @ 2:44PM|#

I really wish people would can the accusations of pedophilia on the part of the school people (and now Thomas), unless there is some evidence of a sexual motivation that I have missed here. Strip searches do happen (it happened to me and I am pretty sure there was no sexual gratification achieved by anyone involved) and petty bureaucrats will be petty in enforcing stupid zero tolerance policies.

You are "pretty sure," but not certain. Well fuck that shit anyway. If you are going to go routing around in a 13 year olds underwear, you better have a better excuse than "I was just obeying the law." I say searching the gonads of a teenager for fucking advil is as good definition of pedophilia as any other. The fucking lameness of that excuse is such that I consider it prima facie evidence of sexual motivation. I mean really. If I, as a parent, stripped my daughter down and searched her fordvil, the CPS people I've worked with would roll their eyes as they were taking my daugther away and contacting the county attorneys office for sexual assault.

And IF these are administrators really are that incompetent or inhumane, maybe they shouldn't be entrusted with this "mission." (Jesus, more war verbage.)

Pedophile Justice Thomas is aiding and abetting pedophiles with this "in loco parentis" bullshit with allowing a power that I, as a parent, would not claim for myself.

Xeones|6.25.09 @ 2:46PM|#

I'm not sure "joe from Lowell" is really everybody's favorite hack, returned from wherever it was he went when his Messiah started blatantly fucking up. For one thing, the Obama splooge on his chin is just a little too obvious, you know?

Though i suppose i could be misremembering the true extent of his blind hackery.

|6.25.09 @ 2:48PM|#

"I expected somebody would have a thought about the subject of judicial empathy and how it applies to this decision. It's been a rather important dispute."

I think the judicial empathy angle perfectly explains why Thomas, the one justice who actually grew up poor, was the one guy who sided with the school. Thomas at a very personal level understands what it is like to go to a public school. Thomas was also the only black student at his high school in Savannah. Given that experience you can easily see why Thomas values discipline and the authority of school officials over a lot of other concerns. Being the only black kid at a high school in the mid 60s in Georgia makes you value a really disciplined environment. It is not like Thomas would have stood a chance had the students been allowed to run wild. For this reason I think Thomas is loath to say that a disciplinary measure in a school is unconstitutional.

|6.25.09 @ 2:49PM|#

"Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

So he's saying that there should be no judicial oversight whatsoever of what goes on in school?

In loco parentis doesn't mean that school administrators can do anything and everything that a parent can do. Can they ground kids? Take away their car keys? Stop their allowance? Prohibit them from dating that scuzzy boyfriend? Of course not.

Christ on a cracker, Thomas. What a stupid opinion.

Timmy|6.25.09 @ 2:51PM|#

I'm not sure "joe from Lowell" is really everybody's favorite hack, . . .

There would be no point in spoofing his email address if he wasn't a regular poster; so that reduces the likelyhood that this is a spoofer.

As far as I'm concerned, he can go back to Lowell and stay there. I don't believe we was ever a valuable participant in the threads.

Liberty Lover|6.25.09 @ 2:54PM|#

Oh, but if only the school officials would be held liable. Get me on the jury!

|6.25.09 @ 2:54PM|#

I expected somebody would have a thought about the subject of judicial empathy and how it applies to this decision. It's been a rather important dispute.

Sure, joe. There are always multiple parties to a dispute; empathy can cut any direction you want.

In this case, who is to say that we shouldn't feel empathy with the poor, put-upon administrators struggling desperately to keep drugs out of their school? The parents of the kids at the school, with their constant fear that without draconian discipline and security their kid will fall prey to drug dealers? The other kids, who should not have to go to a school infested with drugs?

|6.25.09 @ 2:54PM|#

The closest thing to an intelligent thought about the subject I raised was John's assertion that growing up as a poor, black student in rural Georgia will make one predisposed to school authorities, so therefore, the role of empathy in this case was to trust school officials when they want to strip search kids.

That is the most intelligent response. No one else has quite measured up to that sophisticated, thoughtful analysis. John is setting the pace.

I guess that's that.

|6.25.09 @ 2:55PM|#

"In loco parentis doesn't mean that school administrators can do anything and everything that a parent can do. Can they ground kids? Take away their car keys? Stop their allowance? Prohibit them from dating that scuzzy boyfriend? Of course not."

I think Thomas would say that in the 8 hours that the kid is on the school grounds, the school can if it has some relation to good order and dicipline. To take your examples one by one

Groung kids? Yes, they do it all the time, it is called diversion programs or in school suspension.

Take away their car keys? Yes again. I have no doubt Thomas would support a school forcing chronically truent students to turn over their car keys when they come to school in the morning to keep them from leaving.

Stop their allowance? Since schools don't give allowances and there are equal protection concerns if they did, that might be one thing Thomas would object to. Say for example if a school refused to give a kid lunch to deal with a behavior problem.

Prohibit from dating a scuzzy boyfriend? Well no exactly, but schools clearly have the authority to separate kids who are causing problems.

I don't necessarily agree with him. But Thomas has a very consistent position whereby schools have about the same kind of authority the military has in dealing with students. I think the reason he does is no small part due to his life experiences.

|6.25.09 @ 2:57PM|#

Thank you Joe.

Frank -n- Weiner|6.25.09 @ 2:59PM|#

"In this case, who is to say that we shouldn't feel empathy with the poor, put-upon administrators struggling desperately to keep drugs out of their school?"

I empathise with the administrators. Kids are from hell.

|6.25.09 @ 2:59PM|#

In this case, who is to say that we shouldn't feel empathy with the poor, put-upon administrators struggling desperately to keep drugs out of their school?

Because empathy, particularly as it's used in discussions of judicial reasoning, doesn't mean "feeling sorry for people." It doesn't mean "pity." It doesn't mean "sympathy." It doesn't mean "deciding which side you like better."

It means recognizing the consequences of the law and of government action; or rather, of having the capacity to understand and consider those consequences, as they actually apply to the real people who have been effected by the actions of the government, and may be effected in the future.

That this is what "empathy" means in this context is made blindingly clear by Obama's statement, and my comment certainly has nothing to do with pitying someone. You've simply made up a straw man.

|6.25.09 @ 3:00PM|#

OK, where's Episiarch when we need him? Sug, can you summon him through whatever mindmeld you two have going?

|6.25.09 @ 3:00PM|#

Thank you Joe.

Facepalm

alan|6.25.09 @ 3:00PM|#

Two cheers for Ginsburg for putting down the international law manual for a day, and making a sensible Constitutional decision.

I'd tap that.

Frank -n- Weiner|6.25.09 @ 3:00PM|#

"The closest thing to an intelligent thought about the subject I raised was John's assertion that growing up as a poor, black student in rural Georgia will make one predisposed to school authorities, so therefore, the role of empathy in this case was to trust school officials when they want to strip search kids.

That is the most intelligent response. No one else has quite measured up to that sophisticated, thoughtful analysis. John is setting the pace.

I guess that's that."

Maybe you should haul your ass to the Sotomayor thread if you want to chat empathy.

robc|6.25.09 @ 3:00PM|#

ChicagoTom,

schools administrators can't slap children the way a parent can to discipline them

My parents disagree. They fully supported the school disciplining me in the same ways they used. And promised they would follow up with a repeat if it ever happened. Which is why they never knew about the one time I got paddled. :)

However, I can only imagine the level of hell that would have come down on a principal who searched my sister's underwear.

Zeb|6.25.09 @ 3:00PM|#

"Ah, so it's the conscious motivation of the attacker, not the effect on the victim, that matters?"

Both matter. The effect on the victim is relevant, but people can be affected by things in pretty irrational ways. Just because someone feels like they have been sexually victimized doesn't make it true. I would like to see these people punished for violating her rights, but I do not see any evidence supporting the idea that this is a sex crime.
Nudity does not equal sex. This cannot be repeated often enough.

"I say searching the gonads of a teenager for fucking advil is as good definition of pedophilia as any other"

Well, that is stupid. Even supposing it was pedophilia, it is an example of it, not a definition. Pedophilia means getting or seeking sexual gratification from children. There are may other possible motivations (all stupid in my opinion) for searching a teenager's underpants (gonads were not affected int his case) besides pedophilia.

|6.25.09 @ 3:01PM|#

I want to chat this decision.

Warty|6.25.09 @ 3:02PM|#

Sorry joe, but we've moved on. There's just no spark between us anymore. You can't just walk back in here like nothing happened.

|6.25.09 @ 3:03PM|#

joe v John 2009 reminds me of Kingdom of the Crystal Skull.

Not the magic I misremembered, and sorta WTF-y, but better than re-watching The Last Crusade.

Frank -n- Weiner|6.25.09 @ 3:04PM|#

"I want to chat this decision."

So which justice touched on the concept of judicial empathy when writing their decision?

Shorter Warty|6.25.09 @ 3:06PM|#

The thrill is gone
The thrill is gone away
The thrill is gone baby
The thrill is gone away
You know you done me wrong baby
And you'll be sorry someday

The thrill is gone
It's gone away from me
The thrill is gone baby
The thrill is gone away from me
Although I'll still live on
But so lonely I'll be

The thrill is gone
It's gone away for good
Oh, the thrill is gone baby
Baby its gone away for good
Someday I know I'll be over it all baby
Just like I know a man should

You know I'm free, free now baby
I'm free from your spell
I'm free, free now
I'm free from your spell
And now that it's over
All I can do is wish you well

|6.25.09 @ 3:07PM|#

That's not short at all.

|6.25.09 @ 3:09PM|#

OK, where's Episiarch when we need him? Sug, can you summon him through whatever mindmeld you two have going?

Unfortunately, Episiarch is at the manscapers getting his back waxed. Hopefully he'll post from his mobile. Or, at least, that's what I've been thinking at him real hard to do.

Xeones|6.25.09 @ 3:10PM|#

I take back my hypothesis. Only the real joe could ever display such incredible levels of both condescension AND impermeability to reason.

Frank -n- Weiner|6.25.09 @ 3:11PM|#

The other sites must have sent him packing.

|6.25.09 @ 3:11PM|#

In this case, who is to say that we shouldn't feel empathy with the poor, put-upon administrators struggling desperately to keep drugs out of their school? The parents of the kids at the school, with their constant fear that without draconian discipline and security their kid will fall prey to drug dealers? The other kids, who should not have to go to a school infested with drugs?

There is no lack of understanding of how school administrators have t put up with drugs in schools. Nobody said during oral arguments, "Hey, what's the big deal, I'll bet the Assistant Principle has advil in here bag."

There is no lack of understanding of how having drugs in schools bothers parents. Nobody said at oral arguments, "Hey, what's the big deal, I'll bet those parents have taken advil."

There is no lack of understanding the experience of students who go to schools with drug problems. Nobody said during oral argument, "Hey, what's the big deal, those kids live in homes with Advil in the medicine cabinet."

However, there was a great deal of confusion about how a search like this would effect an adolescent girl. The issue of changing for gym, for example, was raised in oral arguments. Hey, what's the big deal?

We should "feel empathy for" all of the parties, in the sense in which the term is used by Barack Obama and Sonya Sotomayor - in the sense of striving to understand not just the legal formalities, but the consequences, including the subjective experiences, that the people involved undergo. I don't worry that Supreme Court justices will be unable to put themselves in the shoes of police, school administrators, parents, or people who are afraid of crime. I'm confident they can understand their situations quite well.

I'm less sanguine that they will have sufficient empathy for people accused by such authority figures of wrongdoing.

Warty|6.25.09 @ 3:11PM|#

That's much longer than what I said.

|6.25.09 @ 3:12PM|#

So which justice touched on the concept of judicial empathy when writing their decision?

The 8 justices who voted with the majority, as I already explained in my first comment.

|6.25.09 @ 3:13PM|#

As I said above, I think this case will end up being less important than people think. The facts are just so outragous that the holding can easily be limited to the facts.

Pendulum|6.25.09 @ 3:14PM|#

I sure hate when those judicial activists insert the federal government into traditional local and state matters....*cough cough*

Frank -n- Weiner|6.25.09 @ 3:14PM|#

"We should "feel empathy for" all of the parties, in the sense in which the term is used by Barack Obama and Sonya Sotomayor"

So do you believe that a Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male?

MNG|6.25.09 @ 3:14PM|#

Thomas, most libertarian judge!

|6.25.09 @ 3:15PM|#

How about we go with this: "Justice Thomas -- the least unlibertarian SCOTUS judge except when it involves schoolgirls' pudenda?"

I would be loathe to characterize ANY of the infamous SCOTUS 9 as "libertarian" -- "least unlibertarian" or "least authoritarian" is as far as I'm willing to go.

Xeones|6.25.09 @ 3:15PM|#

joe is a lot more boringly earnest these days. For some reason i picture him wearing a robe.

Frank -n- Weiner|6.25.09 @ 3:16PM|#

"The 8 justices who voted with the majority, as I already explained in my first comment."

No. I mean which justices had the word "empathy" actually contained in their decision?

|6.25.09 @ 3:16PM|#

Frank, is there a reason you feel the need to spout talking points in response to my thoughts on the empathy that informs this decision?

|6.25.09 @ 3:17PM|#

So I guess it doesn't take a wise Latina woman to recognize that this kind of action by school officials is outrageous.

Hit & Run Narrator|6.25.09 @ 3:17PM|#

"MNG | June 25, 2009, 3:14pm | #"

Right on cue, joe's cretinous sidekick arrives.

Frank -n- Weiner|6.25.09 @ 3:17PM|#

"Frank, is there a reason you feel the need to spout talking points in response to my thoughts on the empathy that informs this decision?"

What???? You bring up Sotomayor vis-a-vis empathy and I can't quote her remarks regarding empathy???

Fuck you.

Frank -n- Weiner|6.25.09 @ 3:18PM|#

Dodging little bastard.

Warty|6.25.09 @ 3:18PM|#

He's wearing boat shoes, Xeones.

|6.25.09 @ 3:18PM|#

Unfortunately, Episiarch is at the manscapers getting his back waxed.

Well, even I'll concede that that takes priority. It's swimsuit season in Seattle, after all.

Jennifer|6.25.09 @ 3:19PM|#

Just because someone feels like they have been sexually victimized doesn't make it true. I would like to see these people punished for violating her rights, but I do not see any evidence supporting the idea that this is a sex crime.
Nudity does not equal sex. This cannot be repeated often enough.

Nudity equals sex when administrators are doling out punishments to teenagers; had this girl done the exact same strip maneuvers voluntarily for one of the boys at school, she AND the boy would be likely be registered sex offenders now.

So if it's a sex crime if the girl does it voluntarily, it's damned sure a sex crime when she's forced to do it.

|6.25.09 @ 3:19PM|#

I mean which justices had the word "empathy" actually contained in their decision?

Which justices had the word "originalism" actually contained in their Kelo decision?

These threads are full of discussions on originalism whenever a case comes down from the court.

If I'd written a comment about the use of sociological citations in this decision, would you be asking me which justices had the words "sociological citations" in their decision? Why, none of them - and yet, citations of sociological works are right there in the decision.

MNG|6.25.09 @ 3:19PM|#

Is Thomas supposed to be the "most unlibertarian" because of his narrow reading of the Commerce Clause? Because in things like the rights of the accused the guy is pretty authoritarian. It's not just schools...

Fluffy|6.25.09 @ 3:20PM|#

Of course you liked John's response, Joe - he found a way to show empathy for judicial empathy, and that's what you wanted to hear.

My answer was the right answer, but you don't want to hear that, because in your soft-headed liberal way you want a polity that respects the rights of individuals, but you also want a strong, assertive, paternalistic state, and the only way to reconcile these desires is to have judges making emotional judgment calls. If the alternative to empathy is rights absolutism, you don't want to hear it because that might undermine the strong state you want.

Frank -n- Weiner|6.25.09 @ 3:20PM|#

Yawn.

I've had my fill of you.

Good day, sir.

Xeones|6.25.09 @ 3:21PM|#

He's wearing boat shoes, Xeones.

Nah, i'm picturing black Nikes.

|6.25.09 @ 3:21PM|#

|6.25.09 @ 3:21PM|#

Seamus,

No, you don't understand. It's the mere threat of her impending Latina wisdom that made SCOTUS see the light.

|6.25.09 @ 3:21PM|#

Seamus | June 25, 2009, 3:17pm | #

So I guess it doesn't take a wise Latina woman to recognize that this kind of action by school officials is outrageous.

Actually, based on the discussions during oral arguments, and then the section I quoted about the effects of this search on an adolescent, it's clear that Wise Woman Ginsburg was able to understand what's at stake better than most of her colleagues, and open their eyes to the consequences of this action.

Gimlet|6.25.09 @ 3:22PM|#

Fluffy Rocks!

MNG|6.25.09 @ 3:23PM|#

Is it really joe? Now I have to give back the House Liberal cape and scepter...

Oh well, glad to have you back.

|6.25.09 @ 3:23PM|#

You bring up Sotomayor vis-a-vis empathy and I can't quote her remarks regarding empathy???

You didn't quote her remarks regarding empathy. You quoted a remark regarding race and ethnicity.

I don't think you even know the difference, or care to know the difference. You've decided that "empathy" means "favoring minorities," because it's what you want to believe, and no matter how clearly I explain what it actually means, you return to your race war like a dog to its vomit.

MNG|6.25.09 @ 3:24PM|#

I think Alito's opinion in the Bong Hits case demolishes Thomas' loco parentis arguments. Take a look.

|6.25.09 @ 3:24PM|#

It means recognizing the consequences of the law and of government action; or rather, of having the capacity to understand and consider those consequences, as they actually apply to the real people who have been effected by the actions of the government, and may be effected in the future.

OK, fine. Then why wouldn't that empathy run equally to all the parties to a dispute? This decision will make it harder to keep drugs out of schools, etc., etc.

Both sides have a case. Both sides argue that the larger consequences of a decision favor their side. "Empathy" doesn't help you choose between sides on any rational basis. Its a code word for doing what you want to do anyway.

I happen to think this decision is right, but not from any "empathy" that we feel for any of the litigants.

Gimlet|6.25.09 @ 3:24PM|#

"You didn't quote her remarks regarding empathy. You quoted a remark regarding race and ethnicity."

vis-a-vis empathy. That's how the whole empathy thing started.

Elemenope|6.25.09 @ 3:25PM|#

All the sneering about having an empathetic judge is rather inexplicable. If you were on trial, I imagine you'd want two things:

1. A judge who understood the application of the law as it concerns the facts

2. A judge who understands the subjective decision-making process of a person in the situation that you have found yourself in

What you would not want is a cold legal automaton.

|6.25.09 @ 3:25PM|#

Fluffy,

I'm sorry you misunderstand the meaning of the term "empathy" so egregiously that you can't understand that John was the only one to address it, and that you didn't.

Gimlet|6.25.09 @ 3:26PM|#

"you return to your race war like a dog to its vomit."

Were you in a monastery all this time studying your bible?

Xeones|6.25.09 @ 3:26PM|#

and no matter how clearly I explain what it actually means, you return to your race war like a dog to its vomit.

Awesome. Dammit, where's Epi?

ed|6.25.09 @ 3:26PM|#

I'm wondering why anyone would even think of consuming an Advil
that's been fermenting in a 13-year-old's panties.

robc|6.25.09 @ 3:27PM|#

The whole empathy discussion bores me. At least originalism is interesting. And seems a reasonable way to decide court cases. Empathy, not so much. In fact, fuck empathy.

robc|6.25.09 @ 3:28PM|#

What you would not want is a cold legal automaton.

I would.

MNG|6.25.09 @ 3:28PM|#

"Both sides have a case. Both sides argue that the larger consequences of a decision favor their side."

But if what is lacking is empathy of one side, then there may be a problem. And the idea is that members of some groups might be able to better empathize with people that currently are'nt getting the right empathy.

|6.25.09 @ 3:28PM|#

Fluffy,

Take aside the repulsive facts in this case and think about conceptually. The question is how much do process do you give students when dealing with school administrators. I don't think anyone would argue that students dealing with administrators are like cops dealing with the public. Where do you draw the line? More importantly who should draw the line? I think Thomas would say that the line needs to be drawn by the schools and by extension the school boards and the community. Thomas would wash his hands of the issue and leave it to the Democratic process.

If you don't take that view, then how do you decide such cases? How does a judge decide what is reasonable and what isn't? I think the answer to that question is at least in part the judge makes a value decision of the need for discipline versus the dignity of the student. That decision, because it is a value decision is going to be driven in no small measure by how much or little the judge empathizes with the administrators and the need for a disciplined school. There is not way around that thought process. If you don't like that process, then maybe we would be better off with the Thomas approach of just leaving it up to the schools and communities.

robc|6.25.09 @ 3:28PM|#

A cold legal automaton would never allow the Mississippi bullshit to happen.

Gimlet|6.25.09 @ 3:29PM|#

"The whole empathy discussion bores me. At least originalism is interesting. And seems a reasonable way to decide court cases. Empathy, not so much. In fact, fuck empathy."

You just don't uderstand joe, that's all.

Now where'd you leave that vomit of yours"?

Gimlet|6.25.09 @ 3:30PM|#

"But if what is lacking is empathy of one side, then there may be a problem. And the idea is that members of some groups might be able to better empathize with people that currently are'nt getting the right empathy."

Ergo the wise Latina woman quote"

|6.25.09 @ 3:30PM|#

I'm wondering why anyone would even think of consuming an Advil
that's been fermenting in a 13-year-old's panties.

ed, they probably have a vending machine in Japan for something similar. Just sayin'.

|6.25.09 @ 3:32PM|#

RC,

Then why wouldn't that empathy run equally to all the parties to a dispute?

I believe I answered this is my second comment to you.

It should apply to all parties in a case. In this particular case, though, there was only one party that seemed to face a potential lack of empathy - a lack of understanding the consequences of the state's actions. The issue before the court came down to a balancing act between the harm done to her and the benefit of making sure she didn't have any more Aleves in her underpants, so as to determine whether the search was "reasonable."

Through the use of empathy, the majority was able to do a better job judging the harm, and a better job making that balance. The court could have said looked at "changing for gym" or "adults being frisked in line for a concert" when deciding how much of an imposition this search made on the plaintiff, but they were able to draw on a capacity to empathize, which allowed them to understand that those are not fair comparisons, and that a search like this is much more intrusive and violating.

Obama|6.25.09 @ 3:33PM|#

People, people, you are wasting precious time and space on a misinterpertation of what i said.

What I meant was that we will abide by the standard of impartiality and always will until the day we have actual empaths that can be placed on the court.

I appreciate the efforts my supporters are making but you are really stretching the matter beyond any reason.

Jack Thread|6.25.09 @ 3:33PM|#

Sometimes This Stuff Just Happens

It just so happens that the Democrat-controlled U.S. House Judiciary Subcommittee on Commercial and Administrative Law has nothing more pressing to do than hold a hearing on the deferred prosecution agreements of former U.S. Attorney Chris Christie, who just happens to be running for governor of New Jersey as a Republican, and who just happens to be leading troubled Democratic incumbent Jon Corzine by about 12 percentage points.

And when reviewing Christie's agreements, Subcommittee Chair Steve Cohen, D-Tenn., just happened to characterize his agreements with companies under investigation as "[making] them an offer they couldn't refuse."

And while questioning a witness who's running as a corruption-busting reformer, Cohen just happened to quote "The Godfather" in reference to his Italian-American witness's decisions. Cohen emphasized that this just happened, he couldn't possibly have known that Christie was Italian-American, obviously the witness before him could just as easily be African-American or Puerto Rican or Chinese or Scandanavian.

|6.25.09 @ 3:34PM|#

It's cute how joe refuses to connect "having empathy" with our concern with who that empathy will be afforded.

It's always cute when he plays dumb. What's not cute is when any of us fall for it.

And the idea is that members of some groups might be able to better empathize with people that currently are'nt getting the right empathy.

See the difference? MNG biases are repellent and grossly wrong, but at least he's man enough to be honest about them.

MNG|6.25.09 @ 3:35PM|#

Roberts can bring the empathy for being the white male son of a wealthy executive....

When Obama announced he would not vote to confirm Roberts he said that his problem with the guy was that he seemed to not empathize with many less powerful parties but tended to have an affinity for more powerful parties. I think what Obama is getting at with his empathy talk is a justice who can understand with where the "little guy" is coming from.

Gimlet|6.25.09 @ 3:35PM|#

"It should apply to all parties in a case"

When all have empathy, none have empathy.

|6.25.09 @ 3:36PM|#

"In this particular case, though, there was only one party that seemed to face a potential lack of empathy - a lack of understanding the consequences of the state's actions. The issue before the court came down to a balancing act between the harm done to her and the benefit of making sure she didn't have any more Aleves in her underpants, so as to determine whether the search was "reasonable."


Once you make the decision that it is up to the Court to decide the reasonablity of searches in schools, you are left with the task of doing just this kind of balancing act and decision process. There is no way to avoid it. It is not like the Constitution says anything directly about the subject.

|6.25.09 @ 3:37PM|#

Gimlet,

That's how the whole empathy thing started. Actually, no, the "whole thing" started when Barack Obama wrote about the need for empathy in judges in one of his books. It came up again when this passage was raised during the campaign. It came up again when he was asked how he would choose judges during the campaign. It came up again when he lauded the retiring Justice Souter. It came up again when he announced Sotomayor's nomination.

Whether empathy is a good quality in a judge, and how it works in judging, is one issue. The role of having a diverse set of judges, in order to maximizing the amount of understanding on the bench, is another.

Decontextualizing Sotomayor's quote in order to make her look like she's prejudiced is quite another.

Gimlet|6.25.09 @ 3:38PM|#

"but they were able to draw on a capacity to empathize, which allowed them to understand that those are not fair comparisons, and that a search like this is much more intrusive and violating."

So in other words, they felt sorry for her. You know, they had sympathy for her.

Citizen Nothing|6.25.09 @ 3:39PM|#

joe can have the scepter, but MNG should keep the cape. (I'm still thinking Batman here.)

MNG|6.25.09 @ 3:40PM|#

Well, part of the balancing that goes on in deciding whether a search is reasonable or not would be what's at stake for either party, and so being able to empathize with, or understand, what was at atake for this little girl would be important...

Gimlet|6.25.09 @ 3:41PM|#

"Whether empathy is a good quality in a judge, and how it works in judging, is one issue. The role of having a diverse set of judges, in order to maximizing the amount of understanding on the bench, is another."

So we need to thin out the Catholics, eh?

|6.25.09 @ 3:41PM|#

So in other words, they felt sorry for her. You know, they had sympathy for her.

Like when arch-conservative David Souter compared what happened to her to changing clothes in a locker room for gym class?

Not-MNG|6.25.09 @ 3:41PM|#

"MNG should keep the cape"

Yes, yes, let him keep the cape! It looks so cool on him.

|6.25.09 @ 3:41PM|#

Gimlet | June 25, 2009, 3:35pm | #

"It should apply to all parties in a case"

When all have empathy, none have empathy.

Only if you're defining "empathy" as "favoritism," but that is not what it means. Once again:

Obama defining empathy: I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.

It is simply not true that "When all have an understanding of how the government's action effects the realities of people's lives, than none have an understanding of how the government's actions effect people's daily lives."

|6.25.09 @ 3:42PM|#

The issue before the court came down to a balancing act between the harm done to her and the benefit of making sure she didn't have any more Aleves in her underpants, so as to determine whether the search was "reasonable."

"Balancing" by judges is another way of justifying what they want to do anyway, joe. Its the nature of balances that they can tip either way, based on subjective factors.

You assume, in your examples above, that the problems of some, but not all, the parties were perfectly apparent to the judges. Frankly, I seriously, seriously doubt that, as you assert:

However, there was a great deal of confusion about how a search like this would effect an adolescent girl.

Give me a break. The vast majority of human beings, upon hearing about this case, went immediately to the trauma inflicted on the girl. In any event, its the job of the attorneys to argue the relevant impacts and consequences of what is at issue. A judge needn't dredge that up from some deep subconscious Jungian well.

MNG|6.25.09 @ 3:42PM|#

"So we need to thin out the Catholics, eh?"

Here comes Mad Max...

Gimlet|6.25.09 @ 3:42PM|#

"Decontextualizing Sotomayor's quote in order to make her look like she's prejudiced is quite another."

You can say with a straight face this woman doesn't harbor prejudices? She was in an all girls club. Still is.

Another poster who is NOT MNG|6.25.09 @ 3:43PM|#

I concur with letting MNG keep the cape!

|6.25.09 @ 3:44PM|#

I agree that the cape is very thinning on him.

MNG|6.25.09 @ 3:44PM|#

Gimlet
Didn't that all-girls club start as a reaction to an all-male club? Women who were not let into this club decided they would start one for them. I'm not sure that's much evidence of prejudice...

|6.25.09 @ 3:45PM|#

John,

Once you make the decision that it is up to the Court to decide the reasonablity of searches in schools, you are left with the task of doing just this kind of balancing act and decision process. There is no way to avoid it. It is not like the Constitution says anything directly about the subject. That's right. I wasn't criticizing the court for doing this, I was just describing the job they had to do.

Now, true or false: the court did a better job of judging the harm of this search, and thus performing the balancing act, because it understood that the subjective experience of this girl being searched is qualitatively different from that of an adult being patted down, or of a student changing for gym?

If you say true - if you say that it is better that the judges understood those effects, and applied that understanding to the case - they you are endorsing the concept of judicial empathy, as articulated by Barack Obama.

MNG|6.25.09 @ 3:45PM|#

"I agree that the cape is very thinning on him."

When I tie it around my waist it detracts from my chunky behind! What a gimmick!

Dan T|6.25.09 @ 3:46PM|#

Hey guys, how's it going?

|6.25.09 @ 3:46PM|#

Well, part of the balancing that goes on in deciding whether a search is reasonable or not would be what's at stake for either party, and so being able to empathize with, or understand, what was at atake for this little girl would be important...

Well, no, not really. That's a recipe for saying its perfectly all right to strip search some people, but not others, depending on how sensitive or easily traumatized they are.

Whether a search is Constitutional or not has absolutely nothing to do with how offended the searchee will be. You don't get strip-searched if you happen to be male, but get a pass if you happen to be female, etc.

Huey Nuton|6.25.09 @ 3:47PM|#

"Didn't that all-girls club start as a reaction to an all-male club? Women who were not let into this club decided they would start one for them. I'm not sure that's much evidence of prejudice..."

You know I tried to join the KKK, but they just kept rejecting my application.

Fluffy|6.25.09 @ 3:47PM|#

I don't think anyone would argue that students dealing with administrators are like cops dealing with the public.

I would argue exactly that. That's why it's such an easy case for me and why I don't see that it requires empathy to make the correct decision.

I'm sorry you misunderstand the meaning of the term "empathy" so egregiously that you can't understand that John was the only one to address it, and that you didn't.

I understand it completely, and merely pointed out that it's absolutely superfluous.

It just isn't necessary to spend even a moment wondering how it felt to be the girl in this situation to issue the correct decision. I suppose ruminating on her feelings for a while will help generate the proper amount of indignation, so it's healthy in that respect, but I don't see that it's necessary to calculate who is in the right of the matter. Because I literally believe that the administrators should have no more power here than a law enforcement official would.

I also would require very little empathy to reach the correct decision in, say, free speech cases, or Establishment Clause cases. I wouldn't have to stop and say, "Gosh, how did it feel to be subjected to this anti-free speech law?" All I'd have to do is say, "Congress shall make no law...etcetera etcetera. Next case."

Ooops|6.25.09 @ 3:47PM|#

Newton

Gimlet|6.25.09 @ 3:48PM|#

"Well, no, not really. That's a recipe for saying its perfectly all right to strip search some people, but not others, depending on how sensitive or easily traumatized they are. "

Bingo! God i love you!

MNG|6.25.09 @ 3:48PM|#

I think a strip search of a 13 year old and 30 year old girl, under the same conditions otherwise, would not seem equally unreasonable to most people.

|6.25.09 @ 3:49PM|#

So in other words, they felt sorry for her. You know, they had sympathy for her.

You are just determined to miss the point, aren't you? It's not that they felt sorry for her. It's not about their feelings for her at all. It's about being able to understand her feelings. That's the empathy.

You're confusing empathy - feeling with someone - with sympathy - feeling for someone. Empathy isn't about their feelings towards someone at all, but about their understanding of her situation and perception.

MNG|6.25.09 @ 3:49PM|#

And how about retards, when can you search them?

Warty|6.25.09 @ 3:51PM|#

It depends, MNG. Are the officers conducting the strip search hot chicks unable to contain their lusts?

|6.25.09 @ 3:52PM|#

As I said above, I think this case will end up being less important than people think. The facts are just so outragous that the holding can easily be limited to the facts.

....sigh...... arguing with Zeb aside, this is really the most point. As the court said...

What was missing from the suspected facts that pointed to Savana [Redding] was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear.

If this was a case where we were talking about 12 oz. of 70% pure heroin or a nuclear tipped dildo and the principal gets evidence that the alleged was constantly readjusting their package, this court would probably allow such a search.

|6.25.09 @ 3:52PM|#

I am comfortable saying no one should be strip searched for an Advil without a warrant.

See, I have empathy for everyone, not just a few here and there based on the color of their skin or the amount of money they have.

|6.25.09 @ 3:53PM|#

The attention whore is back! OMGWTFLOL

I think joe's been driven literally insane by the cognitive dissonance he has to engage in hourly, and he has wandered back like a sick, delirious dog to a place where he once felt like could get that which he craved.

What's the matter, joe? You've taken up masochism now?

|6.25.09 @ 3:53PM|#

RC,

"Balancing" by judges is another way of justifying what they want to do anyway, joe.

Wow. This is a mind-boggling statement. Aren't you supposed to be a lawyer?

No, RC, balancing competing claims is not some conspiracy to screw you; it's what judges do, all the time. It's what they're supposed to do. Is the evidentiary value of this photo outweighed by its emotional effect? That's a balancing act.

|6.25.09 @ 3:54PM|#

"I would argue exactly that. That's why it's such an easy case for me and why I don't see that it requires empathy to make the correct decision."


That is crazy. You could never run a school like that. Schools are in loco parentis in many ways. You are going to require Maranda rights every time a teacher asks a kid if that was gum he was chewing? You going to have schools hire public defenders and make them stage jury trials to punish kids?

The question is where do you draw the line? I will agree with you the line is somewhere before school administrators strip search a kid for advil. But who makes that decision? If you say it is the Court, then you are left with judges making the kinds of decision and using the value judgements Joe is describing. There is no way around it.

Gimlet|6.25.09 @ 3:54PM|#

"Empathy isn't about their feelings towards someone at all, but about their understanding of her situation and perception.

The kid's perception of what, exactly?

|6.25.09 @ 3:55PM|#

The vast majority of human beings, upon hearing about this case, went immediately to the trauma inflicted on the girl. In any event, its the job of the attorneys to argue the relevant impacts and consequences of what is at issue. A judge needn't dredge that up from some deep subconscious Jungian well.

All I can say is, read the stories about the oral arguments. A majority of sitting Supreme Court justices most certainly did not go immediately to the trauma inflicted on the girl. In fact, several of them needed to have it explained to them, over and over, very slowly, because their minds initially went to "changing for gym."

|6.25.09 @ 3:56PM|#

...and again, I am not running for the grammar Czar position.

Gimlet|6.25.09 @ 3:56PM|#

"I think joe's been driven literally insane by the cognitive dissonance he has to engage in hourly, and he has wandered back like a sick, delirious dog to a place where he once felt like could get that which he craved."

In other words, to his own vomit.

Gimlet|6.25.09 @ 3:57PM|#

"emotional effect?"

empathy?

Zeb|6.25.09 @ 3:57PM|#

Jennifer,
Nudity equals sex when administrators are doling out punishments to teenagers; had this girl done the exact same strip maneuvers voluntarily for one of the boys at school, she AND the boy would be likely be registered sex offenders now.

And you think that is OK?

So if it's a sex crime if the girl does it voluntarily, it's damned sure a sex crime when she's forced to do it.

Didn't anyone ever tell you that two wrongs don't make a right? It sure as hell should not be a sex crime when a girl does it voluntarily. And I don't believe for a minute that you actually believe that any exposure of skin that is normally covered is or should be treated equally under the law or socially. You are just being silly. I understand the emotional reaction and the sentiment, but you haven't got a leg to stand on here. This case is fucked up enough without making stuff up.

|6.25.09 @ 3:58PM|#

I remember learning that empathy was relating to someone's feelings without having experienced them yourself, while sympathy was relating to someone's feelings that you have experienced yourself, if that helps.

I sympathize with addicts of Civ IV.

I empathize with addicts of heroin.

joe's distinction seems appropriate in this regard.

|6.25.09 @ 3:59PM|#

"Changing for the gym" was Souter, why not give that towering liberal thinker his due?

|6.25.09 @ 3:59PM|#

joe took a huge dump where he ate when he left last time and I think he actually believes the zookeeper has finally cleaned it up so that he can feed again.

|6.25.09 @ 3:59PM|#

If you are going to go routing around in a 13 year olds underwear, you better have a better excuse than "I was just obeying the law." I say searching the gonads of a teenager for fucking advil is as good definition of pedophilia as any other.

It may be as good a definition of pedophilia for you, but it is not pedophilia. Pedophilia is defined as a sexual desire for prepubescent children. I think one could assume that a 13 year old (or any teenager) is NOT prepubescent.

The strip search was inappropriate but it was not pedophilia.

|6.25.09 @ 3:59PM|#

MNG,

Gimlet
Didn't that all-girls club start as a reaction to an all-male club? Women who were not let into this club decided they would start one for them. I'm not sure that's much evidence of prejudice...

Don't feed the troll. He wants to keep pushing a "Sotomayor is a racist!" line, and a mature discussion of what "judicial empathy" means undermines the claim that it means "favoring Puerto Ricans," so now he's dredging up all sorts of irrelevant things about Sotomayor.

Gimlet|6.25.09 @ 4:00PM|#

"joe's distinction seems appropriate in this regard."

So you think joe's been strip searched?

|6.25.09 @ 4:01PM|#

Episiarch | June 25, 2009, 3:53pm | #

The attention whore is back! OMGWTFLOL

I think joe's been driven literally insane by the cognitive dissonance he has to engage in hourly, and he has wandered back like a sick, delirious dog to a place where he once felt like could get that which he craved.

This is hilarious: I've written comment after comment about judicial philosophy, the decision that just came down, and an ongoing dispute over what makes a good judge.

Episiarch writes a post about what he imagines I must be feeling...and then concludes it with a claim that I'm obsessed with me.

Lol.

robc|6.25.09 @ 4:02PM|#

I am comfortable saying no one should be strip searched for an Advil a nuclear tipped dildo without a warrant.

FTFY.

Advil too, but I wanted to make my position very clear.
Advil, Heroin, "package" nuke. Whatever. No warrant, no search.

|6.25.09 @ 4:02PM|#

Gimlet,

The kid's perception of what, exactly?

From the decision:

Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure….The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts maybe.

|6.25.09 @ 4:03PM|#

SugarFree | June 25, 2009, 3:59pm | #

"Changing for the gym" was Souter, why not give that towering liberal thinker his due?

Perhaps because there's something going on here other than partisan sniping?

Warty|6.25.09 @ 4:04PM|#

I sympathize with addicts of Civ IV.

FUCK YOU SID MEIER

Gimlet|6.25.09 @ 4:05PM|#

joe from Lowell

You show up for an hour and proport to "know me".

My point is that any use of empathy for any party is wrong as RC clearly pointed out.

BTW, I coached the Puerto Rican National Womens gymnastics team at Camp Woodward for several years. If you think I dislike Puerto Ricans, you are soundly mistaken.

robc|6.25.09 @ 4:06PM|#

BTW, this is YAEP (yet another education problem) that is solved by separating school and state.

If a private school gets parental permission for this kind of search, I would have no problem with it. Other than never allowing any theoretical children of mine within 500 ft of that school's grounds.

|6.25.09 @ 4:06PM|#

I've written comment after comment about judicial philosophy, the decision that just came down, and an ongoing dispute over what makes a good judge.

HAHAHAHAHA

I can't tell if I'm feeling nostalgia or nausea. Maybe both?

Come on, joe! Follow the script! You've done "you're obsessed with me". Next, you pwned us! Come on!

Your predictability is so amazing that I have to ask if you've ever taken the Voight-Kampff test.

|6.25.09 @ 4:06PM|#

In some ways we are all pissing in the wind on this stuff. The problem is not what the Supreme Court will or will not do. The problem is that we have an unaccountable school administrator who thought it was a good idea to strip search a girl over advil. And on top of that we have a school board and presumably a sizable number of parents who thought it was a good idea to. You can't depend on a Court, no matter how enlightened, to protect people's rights in anything but the odd case. If we as a society decide that privacy and fairness don't mean anything anymore, no court ruling is going to help us.

The fact that this happened at all is not a good sign. But the worse sign is that she had to sue and go to the Supreme Court to get relief. This should have never happened and when it did the school board and the parents in that community should have immediately acted to right the wrong. But they didn't.

The concept of local autonomy and judicial restraint only works if the locals are not insane. It didn't work when the locals decided that imposing Jim Crow was a great idea. And it won't work when our society decides that we should have unaccountable bureaucrats who are free to overrun people's rights. At that point, you are left two choices; live with the insanity of the mob or surrender your sovereignty to judges and the kind of decision making that Joe is describing.

|6.25.09 @ 4:07PM|#

For those of you running down empathy:

True or false: the court did a better job of judging the harm of this search, and thus performing the balancing act, because it understood that the subjective experience of this girl being searched is qualitatively different from that of an adult being patted down, or of a student changing for gym?

If you say true - if you say that it is better that the judges understood those effects, and applied that understanding to the case - they you are endorsing the concept of judicial empathy, as articulated by Barack Obama.

Would you prefer this decision to be made by judges who honest-to-God did not understand that being ordered to comply with a strip search is a different, more intrusive experience than changing for gym class?

Gimlet|6.25.09 @ 4:08PM|#

"Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating."

Embarrassment, fright and humiliation are all emotions. so in otherwords, they imagined how she felt during and after the search. That's what's known as empathy.

Warty|6.25.09 @ 4:09PM|#

I coached the Puerto Rican National Womens gymnastics team at Camp Woodward for several years.

Guess which words are euphemisms.

I "coached" the Puerto Rican National Womens "gymnastics" team.

robc|6.25.09 @ 4:09PM|#

Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating.

This is bullshit. Her expectation of privacy came from it being her underwear - state of mind had zero to do with it. Just like dressing rooms, you have an expectation of privacy to not be filmed in a dressing room or public bathroom even though they are public places.

I have an expectation of privacy ANYWHERE on my body. Why? Because the constitution grants me it wrt searches.

Jennifer|6.25.09 @ 4:10PM|#

It sure as hell should not be a sex crime when a girl does it voluntarily. And I don't believe for a minute that you actually believe that any exposure of skin that is normally covered is or should be treated equally under the law or socially. You are just being silly.

I agree it shouldn't be a "crime" when she does it voluntarily, but I also believe administrators should be held to the same standards they enforce on their students. So I repeat: it would've been a sex crime had the girl chosen to do this, so it should damned well be a sex crime for the people who forced her to do it.

robc|6.25.09 @ 4:10PM|#

joe,

FALSE. But I dont see the need for a balancing act at all.

Fluffy|6.25.09 @ 4:10PM|#

That is crazy. You could never run a school like that.

Correction: you could never run a public school due to the requirement that the relationship between the school and the student be identical to that between the citizen and the state.

This is probably true. But this is not a bug to me, because I have not committed myself beforehand to trying to find a way to wedge the institution of public education into our Constitutional system. As I said above, if you can't run the public schools and obey the Constitution at the same time - oh well. Close the public schools. Problem solved.

|6.25.09 @ 4:11PM|#

Don't feed the troll.

HAHAHAHAHAHAHA! OMG! TEH IRONY! IT BURNS!

robc|6.25.09 @ 4:12PM|#

As I said above, if you can't run the public schools and obey the Constitution at the same time - oh well. Close the public schools. Problem solved.

Bingo.

|6.25.09 @ 4:13PM|#

HAHAHAHAHA

I can't tell if I'm feeling nostalgia or nausea. Maybe both?

Come on, joe! Follow the script! You've done "you're obsessed with me". Next, you pwned us! Come on!

Your predictability is so amazing that I have to ask if you've ever taken the Voight-Kampff test.

You certainly do raise a good point about empathy as it relates to the application of black-letter law, but it's important to keep in mind that most judging, certainly most judging at the appellate level, is about judging thresholds, not merely answering yes/no questions. It it were, we could just allow lawsuits to be settled by computer programs.

But in response to, "Your predictability is so amazing...," I can only ask, is it better for judges NOT to understand the consequences of the government's actions on people? How can it possibly be better for a decision to be less-informed, rather than more-informed?

robc|6.25.09 @ 4:13PM|#

Fluffy,

Its amazing how many people refuse to even consider the obvious and simple solution to problems.

|6.25.09 @ 4:14PM|#

I hope you all appreciate that joe has handily distracted you with his idiotic position in this thread from annihilating him for his obsequious, lickspittle support of Obama.

|6.25.09 @ 4:15PM|#

"Embarrassment, fright and humiliation are all emotions. so in otherwords, they imagined how she felt during and after the search. That's what's known as empathy."

Yep. Now you're getting it. They UNDERSTOOD WHAT SHE FELT. Empathy.

Note: this has nothing to do with how THEY felt towards her. It is just their understanding of HER emotions.

Gimlet|6.25.09 @ 4:15PM|#

"Guess which words are euphemisms."

1977-1981. Back then, Gymnastics was taught at the camp in PA.

fyodor|6.25.09 @ 4:15PM|#

Joe from Low,

Well there's a place for empathy and a place for "legalistic formulas".

It makes some sense to put yourself in someone's position to determine if an expectation of privacy was present if it not's overtly obvious (though it seems fairly obvous to me in this case).

It's substituting empathy for legal principles when you don't like where the legal principles would take things that would be a serious problem. (Not saying Sotomayer has ever done that, really don't know.)

|6.25.09 @ 4:16PM|#

But in response to, "Your predictability is so amazing...," I can only ask, is it better for judges NOT to understand the consequences of the government's actions on people? How can it possibly be better for a decision to be less-informed, rather than more-informed?

And joe even tries to distract me. Hilarious.

|6.25.09 @ 4:18PM|#

FALSE. But I dont see the need for a balancing act at all.

Really.

So, if this decision had gone the other way, and the majority decision read something like, "We find that the imposition on the plaintiff was minimal, because similar actions, such as changing for gym class or being treated by the school nurse, also involve parts of students' bodies being exposed to school personnel," it would have been not just AS GOOD a ruling, but actually better?

Wow.

Warty|6.25.09 @ 4:19PM|#

Joe, which are better, Brazilian or Thai trannies?

|6.25.09 @ 4:22PM|#

Don't be silly, Warty, joe likes to beat women, not trannies.

Mike|6.25.09 @ 4:23PM|#

From Joe:

"Because empathy, particularly as it's used in discussions of judicial reasoning, doesn't mean 'feeling sorry for people.' It doesn't mean 'pity.'"

From dictionary.com:

Identification with and understanding of another's situation, feelings, and motives. See Synonyms at pity.

Lady Liberty|6.25.09 @ 4:24PM|#

"Note: this has nothing to do with how THEY felt towards her. It is just their understanding of HER emotions."

Justice is emotional.

|6.25.09 @ 4:24PM|#

fyodor,

Well there's a place for empathy and a place for "legalistic formulas".

Of course there is. From Obama's statement when he announced Sotomayor's appointment:

While there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are few that stand out that I just want to mention.

First and foremost is a rigorous intellect -- a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.

These two qualities are essential, I believe, for anyone who would sit on our nation's highest court. And yet, these qualities alone are insufficient. We need something more. For as Supreme Court Justice Oliver Wendell Holmes once said, "The life of the law has not been logic; it has been experience." Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

Note that experience-that-provides-compassion is third, behind "mastery of the law" and "recognition of the limits."

|6.25.09 @ 4:24PM|#

Warty,

I've only ever taken public transportation in the US, and you misspelled "trains."

|6.25.09 @ 4:26PM|#

Mike,

Identification with and understanding

Exactly.

But why are you looking in a dictionary? We have explanations from Barack Obama about exactly what he means when he talks about "compassion" in a judge. He doesn't talk about pity; he talks about "identification and understanding."

Warty|6.25.09 @ 4:26PM|#

You paid trannies to pull a train on you, joe? You sick, sad fuck.

Grant|6.25.09 @ 4:27PM|#

"and you misspelled "trains.""

Hysterical Amnesia is the medical term.

|6.25.09 @ 4:28PM|#

Very funny Epi. To be honest I like Brazilian trannies better since they take better pictures of me blowing myself. Thai trannies just don't have a good photographic eye, which I empathize with.

|6.25.09 @ 4:29PM|#

I've only ever taken public transportation in the US, and you misspelled "trains."

joe's been taking anger management courses. I can't wait until he explodes.

SERENITY NOW JOE

Gimlet|6.25.09 @ 4:30PM|#

"Very funny Epi. To be honest I like Brazilian trannies better since they take better pictures of me blowing myself. Thai trannies just don't have a good photographic eye, which I empathize with."

Even if it's joe, spoofing him is low.

|6.25.09 @ 4:32PM|#

Perhaps because there's something going on here other than partisan sniping?

Wha?

Let's go to the fucking tape...

Overall, a pretty convincing thrashing of the arguments conservatives have been making about Sonya Sotomayor and the judicial process in general for the past month.

First thing you wrote, you little sniveler. First thing.

|6.25.09 @ 4:33PM|#

Don't spoof joe. Let him make his own bed.

Citizen Nothing|6.25.09 @ 4:34PM|#

Ahhhh. Once again, all is right with the world...

|6.25.09 @ 4:34PM|#

Who cares if people spoof joe as long as they change the underlying email address? Just don't spoof his real address too.

Citizen Nothing|6.25.09 @ 4:36PM|#

I don't remember joe being able to get under the regulars' skin so easily. Wot hoppened? I missed whatever precipitated his departure.

I, for one, welcome the return of our liberal would-be overlord.

Ben Kenobi|6.25.09 @ 4:36PM|#

Surely I'm not the only one that thinks this isn't the real joe. This one sounds like a 10 year old. Doesn't sound a thing like the old joe.

robc|6.25.09 @ 4:36PM|#

Really.

So, if this decision had gone the other way, and the majority decision read something like, "We find that the imposition on the plaintiff was minimal, because similar actions, such as changing for gym class or being treated by the school nurse, also involve parts of students' bodies being exposed to school personnel," it would have been not just AS GOOD a ruling, but actually better?

Wow.

Dont be obtuse (oh, wait, you cant help it).

If the decision had said "No fucking searches without a fucking warrant you fucking assholes", that would have been better. There is no need to balance because there is no constitutional way for them to do the search AT ALL. Panties, pockets, backpack, whatever. Avdil, heroin, gun, bomb, whatever.

Well, in the last case if they had STRONG suspicion that it was going to go off in a reasonably short time (quicker than you can get a warrant), I might have been okay with it. Still, should just call the police probably. Or do the search and accept the consequences. :)

Gimlet|6.25.09 @ 4:38PM|#

"Let's go to the fucking tape...

""Overall, a pretty convincing thrashing of the arguments conservatives have been making about Sonya Sotomayor and the judicial process in general for the past month.
""
First thing you wrote, you little sniveler. First thing."

Pssst... We're not allowed to bring up Sotomayor.

BTW, why do you hate the Puerto Ricans, Sug?

joe from lol|6.25.09 @ 4:38PM|#

Epi, you'd be angry too if you were 5'4".

|6.25.09 @ 4:39PM|#

Ben Kenobi,

It's joe. He's running all his old tricks. He's not even bothering to dress up the same old tired bullshit.

Warty|6.25.09 @ 4:39PM|#

Joe only gets under your skin if you're foolish enough to try to have an honest discussion with him, CN. You should know that.

|6.25.09 @ 4:39PM|#

BTW, why do you hate the Puerto Ricans, Sug?

They groped me at their pride parade. [sob]

robc|6.25.09 @ 4:40PM|#

My point is the "expectation of privacy" from searches is the same for my pocket as my underwear. In some senses, I think that was Thomas' point, he just ruled wrong. He would allow both, I would allow neither.

|6.25.09 @ 4:42PM|#

Whose skin is joe getting under? And I'd say it's definitely gorilla-suit-boy unless Cesar has decided to unleash upon us his greatest spoof EVAR.

Gimlet|6.25.09 @ 4:43PM|#

"They groped me at their pride parade. [sob]"

Are you certain the pride parade was for Puerto Ricans? Because the gay pride parade is overwhelmingly Puerto Rican, so it's easy to get the two confused.

Fluffy|6.25.09 @ 4:44PM|#

Its amazing how many people refuse to even consider the obvious and simple solution to problems.

Well, over the course of the history of SCOTUS decisions, it's no longer possible to just consider the simple answer because of the mountain of bad faith that stands in the way.

Our jurisprudence would be immensely more simple if it weren't for the fact that historical courts decided to try to protect state power from the amendments that were designed and ratified to restrict state power.

That's where all the balancing acts come from, that's where the various levels of "scrutiny" come from - a simple refusal to accept the institutional consequences of taking the amendments literally, and acknowledging that an amendment that contradicts a power listed in the Articles supercedes and eliminates that power. There is no more need to balance the enumerated rights with the powers than there is a need to "balance" the 18th and 21st amendments.

And it is because of the fact that bad faith has been applied in previous decisions that Joe can argue we need "empathy" now. Since we don't have sufficient support in the law for rights as principles, we need to make up the lack somewhere. Joe thinks we should make it up by having judges demonstrate empathy. And it pisses him off that I prefer principles and won't accept empathy as a workaround.

Citizen Nothing|6.25.09 @ 4:44PM|#

Warty - I finally clicked on your link. You a Don Marquis fan?

Mike|6.25.09 @ 4:44PM|#

If Obama wants to use the word "empathy", he has to use it with the generally agreed upon definition. He can't say, "Well, I define empathy to be..." and then say he's for it. But even his definition is bad judicial philosophy:

"Obama defining empathy: I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation."

The problem is that Obama is defining it in opposition to legal theory. He is saying that a judge should use empathy instead of looking at the law, and that is where he is wrong. Obama's opponents (like me) are not saying that judges should not understand a person's another's situation, feelings, and motives. We are saying that that is not the proper basis for making legal decisions.

The Supreme Court ruled correctly on this case, not because the search made her feel bad, but because it was an unconstitutional search. Even if she didn't feel the search was a big deal, it would still have been illegal.

|6.25.09 @ 4:47PM|#

Are you certain the pride parade was for Puerto Ricans? Because the gay pride parade is overwhelmingly Puerto Rican, so it's easy to get the two confused.

They.. they calling me "Poppy" and throwing more water!

These threads should have a trigger warning.

Warty|6.25.09 @ 4:53PM|#

Minor fan, CN. I really like that poem.

|6.25.09 @ 4:54PM|#

If the decision had said "No fucking searches without a fucking warrant you fucking assholes", that would have been better.

That wasn't the question.

Charles|6.25.09 @ 4:54PM|#

Can we vote on if that's the real joe? Because I vote no.

Guy Montag|6.25.09 @ 4:57PM|#

Hi everybody!

Gimlet|6.25.09 @ 4:58PM|#

Charles,

I must recuse myself as I knew not the original joe.

But what ever happened to TofuSushi/HEB?

Xeones|6.25.09 @ 4:59PM|#

I sympathize with addicts of Civ IV.

FUCK YOU SID MEIER

Civ III is still better.

|6.25.09 @ 4:59PM|#

The problem is that Obama is defining it in opposition to legal theory. He is saying that a judge should use empathy instead of looking at the law

No, he's not. Once again:

First and foremost is a rigorous intellect -- a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions. Second is a recognition of the limits of the judicial role, an understanding that a judge's job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.

These two qualities are essential, I believe, for anyone who would sit on our nation's highest court. And yet, these qualities alone are insufficient. We need something more. For as Supreme Court Justice Oliver Wendell Holmes once said, "The life of the law has not been logic; it has been experience." Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

Tell me, Mike, when the 8 judges in the majority concluded that being ordered to comply with a strip search is more intrusive than changing for gym class, were they "using empathy instead of the law?" I'd say they were using empathy to help them understand how to apply the law.

robc|6.25.09 @ 5:00PM|#

That wasn't the question.

yes it was.

Charles|6.25.09 @ 5:00PM|#

But what ever happened to TofuSushi/HEB?

Trapped on a desert island with Dan T, I presume.

|6.25.09 @ 5:02PM|#

joe, how much Zyprexa are you on right now?

Gimlet|6.25.09 @ 5:02PM|#

Charles,

All were Dan T?

Citizen Nothing|6.25.09 @ 5:02PM|#

If that's not the real joe that's one high-quality spoof. But then, I've ALWAYS maintained that joe was actally Gillespie building hits.

|6.25.09 @ 5:03PM|#

yes it was.

OK, that's YOUR question. You were, however, purporting to answer MY question. My question was "Would this decision have been better if they'd done A or B?"

Your answer, to a question no one asked, was "They should have done C."

You didn't answer my question.

|6.25.09 @ 5:05PM|#

Episiarch | June 25, 2009, 5:02pm | #

joe, how much Zyprexa are you on right now?

Stay the hell away from my underwear or I'll sue your ass. ;-)

robc|6.25.09 @ 5:05PM|#

joe,

Here was the original question.

True or false: the court did a better job of judging the harm of this search, and thus performing the balancing act, because it understood that the subjective experience of this girl being searched is qualitatively different from that of an adult being patted down, or of a student changing for gym?

I say false. Not because I think they should rule the way your strawmany post suggested, but because there is no need to balance at all, because it was a basic violation of the constitution. There "understanding" helped none at all, they got the right decision for the wrong reason.

robc|6.25.09 @ 5:07PM|#

Would this decision have been better if they'd done A or B?

No it wasnt. See above. You didnt ask A or B. You asked if A (empathy) helped them reach decision B (harm of search). I say false, because it hurt decision B, because they reached it wrongly. If they hadnt used empathy they might have got there for the right reason. Which would have been "better".

robc|6.25.09 @ 5:09PM|#

As a general principle, not applying here, if a question reads "What is 2+2?" and the choices are
a. 3
b. 5

The right answer is still 4, even if not given as an option.

robc|6.25.09 @ 5:10PM|#

Every issue has exactly 14 sides.

MNG|6.25.09 @ 5:12PM|#

robc
Certainly you would allow the search of a person's underwear in some situation? It doesn't bar searches, just unreasonable ones.

|6.25.09 @ 5:14PM|#

Civ III is still better.

I play a heavily-modded IV and love it, but out of the box I have to agree with you.

|6.25.09 @ 5:15PM|#

robc,

There "understanding" helped none at all, they got the right decision for the wrong reason.

Do you understand the concept of "two axes?"

Should I put a cup of tobasco sauce into this pot of spaghetti sauce, or a teaspoon?

You shouldn't have used meatballs, you should have used sausage! Sausage is so much better, because it already has spices, so you don't need to add tobasco sauce.

Whether you're right or wrong about the sausage being better than the meatballs, the answer "a teaspoon" is correct, and the answer "a cup" is wrong.

robc|6.25.09 @ 5:15PM|#

MNG,

Sure. With a warrant they can search. With parental permission, probably. Other than that (and the silly bomb example I gave above), HELL NO!

Under what situations would it be okay to strip search you? I think the same applies to students (plus the parental one, but that is the same as you giving permission, IMO).

|6.25.09 @ 5:17PM|#

The Obama speech on judicial selection is just window dressing on "I will appoint such people as will rule the way I want them to rule."

Judicial appointments always seem to inspire impassioned arguments about horrifically vague concepts. See "judicial activism". Who is a judicial activist? The other guy! Who lacks empathy? The other guy!

robc|6.25.09 @ 5:17PM|#

two axes

I think you would need to be a barbarian to use two axes.

MNG|6.25.09 @ 5:18PM|#

I agree with your second statement btw.

But, what if a 13 year old walks up to a crowd of people and a cop, and then in front of everyone stabs someone and puts the knife in his pants? Could they search there without a warrant?

What if the cop came in later and everyone tells him "the dude put the knife in his pants!"

|6.25.09 @ 5:22PM|#

Let me see if I've got this straight:

"The courts are far too permissive when it comes to searches; therefore, there is no value in empathizing with the people subject to searches when determining if they are constitutional."

Doesn't the fact that the courts are too permissive when it comes to searches make it even MORE important for the courts to pay attention to the harm those searches do when considering their constitutionality?

Mike|6.25.09 @ 5:23PM|#

"Tell me, Mike, when the 8 judges in the majority concluded that being ordered to comply with a strip search is more intrusive than changing for gym class, were they "using empathy instead of the law?" I'd say they were using empathy to help them understand how to apply the law."

Good point. Since I want to be consistent, I guess I would not let students change clothes in gym class without prior parental consent. I would not say that search=bad and class=OK because of the feelings of the student.

|6.25.09 @ 5:28PM|#

Doesn't the fact that the courts are too permissive when it comes to searches make it even MORE important for the courts to pay attention to the harm those searches do when considering their constitutionality?

No.

Unconstitutional is unconstitutional. We're in this mess because judges have been using their empathy superpowers to consider the potential harm which might result from the presumption of innocence.

Fluffy|6.25.09 @ 5:28PM|#

Doesn't the fact that the courts are too permissive when it comes to searches make it even MORE important for the courts to pay attention to the harm those searches do when considering their constitutionality?

No. It makes it important for the SCOTUS to be less permissive when it comes to searches.

The SCOTUS can do whatever it wants. That means that when you ask, "If the court is going to make bad decisions, wouldn't you prefer that the justices at least proceed with a lot of empathy, to contain the damage they're going to do?" I get to answer, "I don't agree that I have to accept that the Court will make decisions."

Fluffy|6.25.09 @ 5:29PM|#

Sorry, that should read "...will make bad decisions." I must have messed up my tags because the word "bad" disappeared from my post.

|6.25.09 @ 5:34PM|#

You don't get to answer that. News flash: the court is going to make decisions. They are going to be more permissive on searches than you would like.

Do you really think there is no difference between allowing schools to do this, and forbidding them to do this, unless you get your "...and an pony" ruling, too?

There are actual people whose freedom and sense of bodily security are endangered here. Doesn't that matter to you at all? Are you really saying it doesn't matter whether these types of searches are allowed, or not, beyond getting the absolutist decision you want?

Is this some kind of "heighten the contradictions" thing? Maybe if enough 13-year-old girls get strip searched, you'd get the whole enchilada?

robc|6.25.09 @ 5:37PM|#

MNG,

But, what if a 13 year old walks up to a crowd of people and a cop, and then in front of everyone stabs someone and puts the knife in his pants? Could they search there without a warrant?

What if the cop came in later and everyone tells him "the dude put the knife in his pants!"

1. That he is 13 years old matters not
2. Pants vs pocket/backpack matters not
(just to clear those up, just in case)
3. Whatever standard rules are applies, I would guess in case of plain sight by the cop, no need to "search", it was already seen, so no warrant.
4. Need a warrant. The eyewitnesses give you reason to hold the guy until the warrant shows up.
5. If you are arresting him, I think you can search at that point without a warrant, which in the case of a stabbing, is what you would do anyway, so there you go.
6. Principals dont arrest people, so the standard is different.

robc|6.25.09 @ 5:38PM|#

BTW, the knife example falls under the "silly bomb example" exception sorta.

robc|6.25.09 @ 5:42PM|#

4b - the eyewitnesses also given you cause for the warrant.

Ben|6.25.09 @ 5:44PM|#

Again, right decision, wrong reason.

There was no probable cause.

Therefore, the search wasn't legal.

The ONLY legal path to a search is that specified in the 4th amendment.

1) probable cause [this case fails here]
2) oath or affirmation supporting (1)
3) explicit description of search target
4) warrant [fails here too]

End of story.

I hope she sues the living FUCK out of the school system and the people involved. And wins a few million, puts a real dent in the school system's funding. These drooling tin pot dictators need to be put in their place.

(geez, reason, why don't you get your darned comment filtering software out of the 1990s? why filter LIST tags, for crying out loud?)

Xeones|6.25.09 @ 5:51PM|#

Whether you're right or wrong about the sausage being better than the meatballs, the answer "a teaspoon" is correct, and the answer "a cup" is wrong.

No. Tabasco is a salty iron shit and is wrong in ANY amount. But you do seem like the kind of guy who wouldn't know Sriracha if it fucked his girlfriend on the internet.

robc|6.25.09 @ 5:51PM|#

Ben,

[perv mode]
explicit description of search target

The principal should be able to give us that now.

[/perv mode]

|6.25.09 @ 5:52PM|#

Tabasco is a salty iron shit and is wrong in ANY amount.

You've gone too far. Take that back!

Ben|6.25.09 @ 5:58PM|#

Principals don't arrest people, so the standard is different.

The standard is a base requirement for the federal government, extended to state operations via the 14th amendment, and it applies to ANY government agency, including local town and county, which operate under state laws. IT has NOTHING to do with arrest, or not, or the power to do so.

o probable cause
o oath or affirmation
o description of search
o warrant

Go ahead, look in the constitution. Take as much time as you like. You WILL find that there is NO OTHER AUTHORIZATION FOR A SEARCH. There is no other PLACE to get such authorization. The authorizing document for the federal government is the constitution; and the constitution ALSO sets limits on any procedures within the states.

It doesn't clarify ANYTHING to describe current practice, because current practice is unauthorized and therefore ILLEGAL.

The US government is out of control, exerting powers that IT IS NOT AUTHORIZED TO HAVE OR EXERT.

Any citizen with even a touch of concern for the country should be working to get the feds back inside the boundaries of its actual authorizations.

Ben|6.25.09 @ 6:00PM|#

robc,

Maybe listing on the local perv website might be an appropriate punishment for him and the ladies who did the looking.

Oh, and a huge bloody lawsuit, too.

Mad Max|6.25.09 @ 6:05PM|#

'Roberts can bring the empathy for being the white male son of a wealthy executive....

'When Obama announced he would not vote to confirm Roberts he said that his problem with the guy was that he seemed to not empathize with many less powerful parties but tended to have an affinity for more powerful parties. I think what Obama is getting at with his empathy talk is a justice who can understand with where the "little guy" is coming from.'

That makes it all the more impressive that Roberts, along with Scalia and Alito, voted for the schoolgirl in this case.

I mean, these guys didn't have the natural empathy which comes from the life experience of being a Senate aide (Breyer) or a New Hampshire bachelor (Souter).

Roberts, Scalia and Alito are had numerous strikes against them on account of being white gringo male conservatives. Yet they overcame these handicaps in order to vote for the schoolgirl.

That means that 75% of the Court's conservative wing displayed empathy. Or, to put it another way, 100% of the Court's white male conservatives. (and conservatism is primarily a white male phenomenom, wouldn't you agree?)

So it seems that there is no real issue between the conservatives and the liberals on the issue of empathy. And President Obama's concerns about Roberts were misplaced.

But to shift from the political definition of empathy to the relevant dictionary definition, my Webster's has this: 'the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts and experience of another of either the past or present without having the feelings, thoughts and experience fully communicated in an objectively explicity manner, also, the capacity for this.'

Observe that there's nothing in this definition about taking the side of the person you're empathizing with.

Indeed, the need for empathy is greatest when a judge is ruling *against* someone. Judges need to appreciate their own actions when (for instance) they hand down sentences for guilty defendants whose family is in the room realizing that they won't be seeing this guy on the outside for several years. They need to appreciate their actions when they dismiss charges against rapist because the evidence against him was obtained illegally, while the victim and her relatives are there in the courtroom taking it all in. They need to have empathy for *everyone* who appears before them. If it's a question of empathizing for those who are weak and powerless, in the context of a judicial proceeding, even Bill Gates looks less powerful when he's in front of a judge with the power to seize his wealth or put him in prison for any backtalk. Talk about a power imbalance!

Judges need to feel sober-minded and maybe even a bit sorrowful when they hand down decisions which hurt others, even justly. If a judge actually gets off on wielding power, if the people in front of him are a blurry mass of ants who exist for the gratification of his power impulse, then we get a Samuel Kent, the judge recently impeached in the House for letting his power go to his head.

|6.25.09 @ 6:26PM|#

Wow a lot of posts.

8-0. Nice. Possession of a legal substance should never be grounds for a strip search, period.

I think Thomas thinks it's never wrong for authority to search.

|6.25.09 @ 6:38PM|#

"""Lower courts have had trouble deciding when that standard applies, Souter wrote, so Wilson should not be held personally liable for the incident. The court ruled, though, that Redding's suit could proceed against the school district.

Ginsburg and Justice John Paul Stevens criticized the decision to remove Wilson from the suit, saying he should have known the search violated Redding's rights.

"Abuse of authority of that order should not be shielded by official immunity," Ginsburg wrote. """"

http://www.washingtonpost.com/wp-dyn/content/article/2009/06/25/AR2009062501690_pf.html

I have to applaud Ginsburg and Stevens for wanting to uphold personal responsibility.

Elemenope|6.25.09 @ 7:40PM|#

Observe that there's nothing in this definition about taking the side of the person you're empathizing with.

Indeed, the need for empathy is greatest when a judge is ruling *against* someone.

Yes indeed.

|6.25.09 @ 8:41PM|#

Actually, based on the discussions during oral arguments, and then the section I quoted about the effects of this search on an adolescent, it's clear that Wise Woman Ginsburg was able to understand what's at stake better than most of her colleagues, and open their eyes to the consequences of this action.

So non-Latina-but-presumably-wise-woman Ginsberg brought all her colleagues around (all, that is, except for the one actual Person of Color on the Court)? I don't buy it.

robc|6.25.09 @ 9:33PM|#

Ben,

Dude. Context. You are arguing with someone who agrees with you.

Read all my posts on the thread.

Ben|6.25.09 @ 9:37PM|#

robc, was I arguing with you? I didn't think I was...

robc|6.25.09 @ 9:41PM|#

5:58 post seems like it.

Ben|6.25.09 @ 9:42PM|#

Oh, wait... the principal thing... yeah, I disagree there. No one - not principals, cops, anyone -- is authorized to search without a warrant. So the standard isn't different. There's only one standard.

Again, not the current state of affairs, but the actual constitutional requirement.

robc|6.25.09 @ 9:44PM|#

Ben,

I think it is reasonable (and well with the constitutional standard) to search someone as you arrest them and take them to jail. If for no other reason than to protect the other prisoners you jail them with.

You better have a damn legit arrest though.

robc|6.25.09 @ 9:45PM|#

Ben,

Are you really claiming that frisking during an arrest is unconstitutional?

Mark Lambert|6.25.09 @ 9:54PM|#

Best possible outcome by the Court; although the administrator had immunity because the law was supposedly not clear, that won't be an excuse int he future. Not surprised at Thomas's dissent; I wonder how he would have felt if that had been his daughter. The Iowa Legislature statutorily specifically banned strip searches about twenty years ago.

Ben|6.25.09 @ 9:55PM|#

robc, you bet. Can you find anything in the constitution that says different?

The constitution wasn't designed to make things convenient for the government or its agents. Quite the contrary. It's designed to limit the power of government and its agents.

Now, if you read the 4th, actually *read* it, you'll see that it says that no unreasonable searches may be pursued, *and* it very precisely defines what is reasonable. And it doesn't say "unless you're arresting someone" or "cops can violate this amendment.":

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So my position is that if government agents, or the government as an entity, want to search someone, they need to get a warrant. Because that's what the authorizing document says. Does that mean that the cop has to wait for the warrant (and provide the precursors to get one) if he wants to search? Yes. No question about it.

Now, if they want to change this, they certainly can -- there's article V, just waiting for them. And it's probably a good idea. But in lieu of such a change, they're operating illegally.

Ben|6.25.09 @ 9:59PM|#

robc, I should add that I think it's perfectly reasonable for a cop to *ask* you (in front of witnesses, of course) if they may search you, and if you say yes, then do so. It could save everyone a lot of time under some circumstances. However, if you're arrested for jaywalking or speeding, it's no damn business of theirs what's in your pockets unless you care to share the information, or they can provide probable cause sufficient to convince a judge that you *ought* to be searched. Nor, in such a case, is there any *reason* to search you.

Ben|6.25.09 @ 10:08PM|#

If for no other reason than to protect the other prisoners you jail them with.

I'm pretty well convinced that putting a newly arrested person in with other newly arrested persons puts them unacceptably at risk in any case (even if all they can do is spit on each other); arguing from the position that the jails are unsafe, and therefore searches should be required is not something I'd back.

If the jails are unsafe (and they are), then they should be made safe. It's not a gateway to ignoring the constitution. That is (again) an argument for the government's convenience. The constitution isn't designed to make things convenient for the government. Exactly the opposite.

I think it is reasonable (and well with the constitutional standard) to search someone as you arrest them and take them to jail.

Ok. Explain it to me. Show me where the constitution allows it.

:)

robc|6.25.09 @ 10:52PM|#

Ben,

I would start with frisking being a very reasonable search at the point of a legit arrest.

I would need to see pre-constitution common law to determine whether warrants ever applied to situations like that, Im assuming they didnt.

Originalism requires knowledge of the context. Im no legal scholar but unless you can show me otherwise, Im assuming the founders didnt apply warrants to that situation. The Amendment is there to protect against the type of abuses the British commonly performed. I dont think (but I could be wrong, but you need to PROVE it, beyond the words in the Con) that they considered searching an arrested man one of those abuses.

Searching a person who wasnt under arrest without a warrant, on the other hand....

robc|6.25.09 @ 10:59PM|#

it says that no unreasonable searches may be pursued, *and* it very precisely defines what is reasonable.

Actually, you are wrong on that second part. It defines the means for getting a warrant. It is quite possible that warrants only apply to houses, papers and effects but not to persons. We would have to go to common law to see.

describing the place to be searched, and the persons or things to be seized.

Considering that last part, to seize a person requires a warrant. An arrest warrant to be specific. Are you saying that cops cant arrest someone until they get the arrest warrant issued? They see a crime occur but they cant do anything about it because no warrant has been issued to seize that person? Your literal, as opposed to originalist, reading would mean that. And that is just silly and clearly goes against practice before and after the 4th amendment passing.

Now, I would say you are partly right. If Im arrested at a time separated from the crime scene, searching my person at the time of arrest probably is a violation. But, at the crime scene, when captured by cops, I think you can be both searched and arrested without a warrant.

johnl|6.26.09 @ 12:29AM|#

Hey Lowell Joe why do you think BHO was on the wrong side of this case? Doesn't that make it hard to argue that this decision is an example of the type of thinking BHO advocates?

Not to pile on. Really I think you contribute most to the board arguing about land use. Where have you been on the interior designer threads?

JB|6.26.09 @ 12:47AM|#

Empathy and feelings make Joe's vagina tingle.

|6.26.09 @ 1:40AM|#

"...experience of this girl being searched is qualitatively different from that of an adult being patted down, or of a student changing for gym?"

Am I the only who thinks that these are ridiculous comparisons? Comparing changing for the gym to this strip search, is like comparing sex to rape; a willful act and a coerced act.

If you are about to be patted down in a line for a concert or a sporting event, you are there voluntarily, at any point in time you can say "don't touch me perv" and walkout.

Do police/customs even have a right to strip search you if you refuse or before you see your lawyer if you ask?

I just cant get my mind around how these are even remotely valid comparisons.

Ben|6.26.09 @ 4:00AM|#

I would start with frisking being a very reasonable search at the point of a legit arrest.

Ok. The way I see it, because the constitution says so, the following is a reasonable search:

1) Probable cause
2) oath or affirmation
3) description
4) warrant - now you can search.

Again, as I see it, there is no other reasonable search. That's why, it appears to me, they defined it. So we'd know what it was. To say that "no unreasonable" leaves room for anything anyone can imagine as "reasonable" makes no sense to me when they went so far as to define "reasonable" for us in perfect clarity.

Consider: If they did NOT mean to precisely define reasonable as 1-2-3-4, then why is that stuff there? What could its possible purpose be? Why enumerate one of many "reasonable" situations, in a non-exclusive manner, AND take the time to point out that the right to not be searched was not to be violated, when there remain [border searches, cop searches, principal searches, courtroom searches, aircraft searches, coastguard searches and literally, according to modern judge-voodoo, anything at all anyone thinks is "reasonable"]? Do you have an answer to that?

If not, then it would appear that they meant to explain what reasonable was -- and actually did so. And in which case there is no room whatsoever to claim that a search of any kind without a warrant is reasonable. Reasonable is 1-2-3-4 and nothing else in the universe (again, barring use of article V, which so far, nothing doing.)

If you DO have an answer to that, please let me know. I've always wondered where the apparent double-think that brought "unreasonable" out to mean "except anything we consider reasonable and just ignore 1-2-3-4" came from.

WRT frisks in particular, I would also point out the language: "The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated"

Right after which, they define 1-2-3-4. Funny, eh? Do you really think they didn't mean just what they were saying? Remember, I'm *not* talking about current practice. I'm talking about looking at the document and reading what it says. It was originally written in plain English for plain people to read. The fact that lawyers and legislators and judges like to turn it into mud today is not part of the original context. It's just part of a huge power grab.

Over to you.

Ben|6.26.09 @ 4:06AM|#

Are you saying that cops cant arrest someone until they get the arrest warrant issued? They see a crime occur but they cant do anything about it because no warrant has been issued to seize that person?

Yes, exactly. That's what the constitution says. If they want to change it, they can, see article V. Why am I sure? Because since waaaaay back in medieval days, they couldn't enter a home or take a man w/o a warrant, because the English got really tired of that. And that's where we got a lot of the constitution's form. They had a chance, when they wrote the constitution, to say "except when arresting" and so forth... but they did NOT say so, and so it doesn't get to magically be there. In point of fact, it's NOT there, and that's the end of it for me.


Magna carta, in point of fact, AD 1215.

robc|6.26.09 @ 8:25AM|#

Ben,

I call bullshit on whatever was the 17th century equivalent of a British cop not being able to seize someone they see committing a crime. After the fact, hell yes you need an arrest warrant. But during the crime? Bullshit.

Ben|6.26.09 @ 12:29PM|#

robc. That's irrelevant. The point is, the US constitution was written to set up a new array of conditions. They had every chance in the world to write in exceptions to the 4th amendment. They didn't. Therefore, there aren't any. They knew about borders, they knew about arrests, they knew about areas full of political operators... and still, there are no exceptions for any of those things. The US constitution was written to INconvenience the government. Every line of it screams so. Reading it as a means to convenience the government is walking in an imaginary fairyland... this is not the document you think it is, and it is not the document the legislators, judges, and big-government choad-polishers think it is. Further, the fact that some areas of the constitution were never successfully implemented still doesn't obviate the fact that it was written with the intent that they would be implemented.