Yesterday in Florence vs. Board of Freeholders, the US Supreme Court ruled that if you are arrested–for any reason whatsoever–the law-enforcement officials in charge of you can strip-search you. Over at ScotusBlog, Lyle Denniston sums it up a little better:
Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures. The prisoner, however, may be told to manipulate some part of the body….The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.
Justice Oliver Wendell Holmes once said the law was best defined as a prediction of what judges or courts would do. In that sense, this Supreme Court offers stable law: take any case, imagine what a run-of-the-mill-conservative would suggest as a ruling and write down ‘4’ next to it; do the same for a run-of-the-mill-liberal. Then, for the deciding ninth vote–Justice Kennedy’s–you could toss a coin or roll a dice or inspect tea leaves.
This confidence in predicting ‘conservative’ and ‘liberal’ votes stems, of course, from voting patterns but also from the transparent displays of ideological commitments by Supreme Court Judges in their spoken pronouncements and their writings. For instance, in Florence vs. Board of Freeholders, the Supreme Court’s majority ruled that in this domain, it had to defer to jail and prison managers, that it possessed no relevant expertise that could be brought to bear on their activities. This is a striking admission of limitations, one that we can be sure will not be expressed any time in the future when a conservative outcome is required.
I could carry on like this, picking apart each point of the majority ruling, but it would be a far better use of my time to simply note what many have done since Bush v. Gore: the US Supreme Court is just another political institution (This politicization of the institution does not back only to 2000, of course. It is just that in Bush v. Gore, the court’s politicization was made overt in, I think, a previously unprecedented manner.) The US Supreme Court has an ideology; it has political preferences; it most assuredly has dogs in the fight, and it will back them by any means necessary; it has political rhetoric at its disposal, and when it wants an otherwise weak or untenable legal argument to carry weight it will back it up with just that rhetoric.
In this situation, there is something quite touching about the gallons of ink spilled, by our nation’s legal class, on intricate legal analysis of fact patterns and the like, in an effort to predict and analyze Supreme Court judgments. One might think that legal analysis never offered any cause for hilarity; but in matters like these, it most assuredly does. And this is not restricted to those that analyze Supreme Court rulings but even those who write them: the painful, intricate, attempts to cover up straightforward political preferences with long-winded, superficially sophisticated legal arguments can only be chuckle-inducing. Better, I think, to be honest, and simply use my method of prediction above. It is concise; it is honest; it gets you the same predictions as a fancy Harvard or Yale lawyer might.
Who would have thought it: law can be politics by other means.
Samir Chopra 