What Can the Supreme Court Run?

Not very much, according to Justice Kennedy.  I couldn’t help thinking about the Affordable Care Act cases when reading his opinion for the Court in Florence v. Burlington County, handed down yesterday.  The Court ruled that the Fourth Amendment does not forbid law enforcement from strip searching arrestees even if there is no reason to suspect that they possess contraband, carry disease, or could be violent.  And remember — this is just pursuant to arrest: they obviously can be innocent of the crime charged, as was the petitioner here. 

Any arrestee can be strip-searched for any reason, or for no reason at all.  (Roberts and Alito sensibly warned that they could revisit these holdings, which Kennedy seems to have resisted and which Justice Thomas seems to have rejected).  These searches, explains Justice Breyer in dissent, involve:

a visual inspection of the inmate’s naked body.  This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus.  For females, the procedures are simlar except females must, in addition, squat to expose the vagina.

Thes searches include people arrested for outstanding parking tickets, a violator of the dog leash law, women in their menstrual periods, and victims of sexual violence.

Why?  Because Courts can’t run jails:

This case turns in part on the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific limitations and restrictions sought by those who challenge the visual search procedures at issue….

The difficulties of operating a detention center must not be underestimated by the courts…Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.

So the Court will allow these incredibly invasive searches without any probable cause on the part of police because it cannot run a detention center.  It must defer to local police because it simply lacks the expertise to do anything else.

One might imagine, then, that the Court would pause before disrupting Congress from writing a lengthy and extremely complex health care bill affecting one-sixth of American economy.  The Fourth Amendment commands the Court to supervise “searches and seizures,” but the Constitution does not require the Court to police these sorts of complex socio-economic judgments.  Health care requires perhaps even more expertise than law enforcement.  If the Court can’t write rules for local jails, surely it can’t write rules for the health care system.  Right?



Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

24 thoughts on “What Can the Supreme Court Run?”

  1. Or, it can’t allow rules for the health-care system to be written by the legislature. Just as only the police know how to do the job of the police, so only health-care providers can judge how health care should be provided.

    This is a depressing moment. Any thoughts on the 5th Circuit’s demand that the Administration renew its pledge to abide by Marbury vs. Madison?

    1. The judge who ordered that was Jerry Smith, one of the most right-wing judges in America, which is saying a lot. (He’s not even the most right-wing judge on the 5th Circuit, which is also saying a lot). He’s a Movement Conservative from the Reagan years. It’s depressing that federal judges seem to be getting talking points from Mark Levin, but not surprising: Scalia did the same thing last week.

  2. Well, the cynical side of me looks for an opinion taking us back to Smyth v. Ames (1898), parading reams of information provided by the anti-regulation side, and maybe based on something unlooked-for and plucked out of the blue, like even resurrecting that hoary old chestnut of economic substantive due process itself. The tangential angle would be a classic way to develop a majority wary of too obvious reliance on reasoning presented by the actual parties to the case. It would be a characteristic Scalia hoodwink too, counting on the others not recognizing the doctrine as he restated it, but he probably wouldn’t be the one to write the opinion.

    1. And putting folks in jail for days (longer than scooter libby) for petty offenses.
      Maybe there is something smarter to do for folks arrested for jaywalking than putting them in the stony lonesome.

      1. Well, I can’t speak about the county in the decision, but I can tell you that in California, you can’t go to jail for jaywalking (it’s an infraction, so you are released on a written promise to appear – a ticket – unless you refuse to sign the citation). And in both counties that I’ve worked in as a prosecutor, even if you fail to appear on a low-level crime, the next time that you do something stupid in front of a cop (like jaywalking), you will be sent on your way with yet another promise to appear (and you can imagine how effective that usually is). In fact, you generally won’t get booked on a warrant in my county unless the judge issues a $50,000+ warrant, which will not happen unless: 1) you prove that you are not a big boy or girl by FTA-ing over and over again; or 2) you are charged with something far more serious than jaywalking (our misdemeanor bail is $5,000). So yeah, I guess that the system already agrees with you. In fact, the only times that I’ve seen something stupid turn into a $50,000+ warrant was when the defendant failed to appear for a fourth or fifth time – that tends to annoy judges even more than it annoys me.

        1. Well, I don’t condone people breaking promises, but it doesn’t surprise me. Going to court is frightening, for one thing. A few years ago, I followed a PD during her day and I was surprised to see a prostitute had had to spend the weekend in jail. Somehow I thought that in “enlightened” Los Angeles County, that that couldn’t happen. She could have been in for some of these FTAs though. She was about 18, and tiny. No threat to anyone anywhere, at any time. I tell you, even with the FTAs I don’t see a point to it. Put the johns in, if anyone. And you still wouldn’t need a strip search, probably.

          1. The point really isn’t whether or not prostitution should be legal; the same argument can – and perhaps should – be had about many other crimes. But that’s an argument that belongs in the Legislature or on the ballot box.

            Neither is the point whether someone has violated a “promise.” A promise to appear is an order telling the person that he or she needs to appear in court on a specific date at a specific time. It carries with it the force of law. So when you don’t appear, you are actually committing a crime that you can be charged with. (Althoug, generally speaking, the offices that I’ve worked at haven’t charged these as such.)

            The point is that the person who has failed to appear has already been given the benefit of not being in custody: When the police release you on a promise to appear, they are doing that in lieu of forcing you to remain in custody while awaiting arraignment. For the majority of people, this never becomes an issue. For some, it does. They don’t appear, the court issues a warrant, the police cite them out; lather, rinse, repeat. But at some point, the judge will have had enough and make sure that you are present at your next court date.

            And I am sure that your day with the PD’s office was enlightening. Tempted as I am to make a snarky comment about public defenders, the truth is that I actually look at the vast majority of them as skilled lawyers and colleagues.

            But don’t mistake spending a single day shadowing a lawyer around for actually being a player in this system. One of the most shocking aspects of my line of work is that most of the people who appear in my courtroom simply default to lying. They’ll look you in the eye, and in a calm tone of voice, tell you something that you know to be untrue. This was an especially uncomfortable truth for me, because I chose to be a prosecutor rather than a public defender at least in part because I believed that I could do more to protect defendants’ rights systemically. And I still try to do that, but I have a very different view of defendants now than I did when I started.

          2. hi Anonymous:

            don’t worry, I don’t have any ideas that I am a player from visiting for a day.

            But as a voting citizen and a lawyer, I feel completely free to criticize how this person was treated. She was put in jail (I think – my memory isn’t great) for not appearing in court to answer for a crime that, IMHO (except as you see, I’m not as humble as some people might like), doesn’t deserve a jail sentence.

            I could see her having to pay a fine for the “real” crime — the FTA — but why put her in jail?

            As a citizen, I don’t give a flying f*** about whether or not we ever even collect. We don’t need to be putting her in jail, period. Especially since we know what she (probably) has to do to pay that fine, and who keeps most of it. It’s a joke, and I think here is fine place to discuss it, btw. (And I favor decriminalizing, not legalizing.)

            As for the lying, well I agree with you there.

    2. The warrant system is only part of the problem. Another is Atwater, which allows the police to take people to jail for trivial offenses.

      But the strip search policy is also a problem. Read Breyer’s excellently argued dissent. Turns out, he actually used some data to come to his conclusions.

  3. Something tells me that certain “favored” population subsets are unlikely to be subjected to such strip searches for similar minor infractions or suspicion of same. I seriously doubt that a rich white man would, under similar circumstances, face the same treatment as the black man who brought the suit. I read elsewhere that the court’s opinion included some note that such strip searches are appropriate for putting anyone into general prison population but not (for example) into a holding cell–and who do you suppose gets targeted for six days of general population (complete with strip search) while their documented claim that an “unpaid” traffic infraction, that was in fact paid, gets sorted out?

    Yes, the warrant system did lead to his arrest and strip search, but given identical circumstances I think a white man of the “upstanding citizen” variety (but not an Occupy protester, or someone economically challenged) would never have received the kind of treatment that started this case. The black man in this case was summarily tossed into jail (with a transfer to a second jail too, so there was a second strip search) and he was held for SIX days, for an infraction that normally does not involved any jail at all.

    “Deferring to the local police” is code for allowing unequal treatment depending upon how those local police evaluate your social status. Preferential treatment will be given to some; punitive treatment reserved for others, given identical legal circumstances. The court did not address this real-life fact, but by letting the strip search treatment stand for some but not all, the court is supporting such unequal treatment. For “non-jail” offenses such as in this case, either strip searches should be initiated against everyone who is hauled in for them, or no one should have to undergo them. Otherwise unequal treatment is pretty much guaranteed.

    1. Which is why actually prefer Thomas’ approach to that of the other conservative judges. According to Thomas, if some rich white guy doesn’t get the normal deference due rich white guys by our correctional-industrial system, he is SOL on judicial review, just like everybody else. Roberts and Alito left open the possibility of special judicial treatment.

    2. Ditto Kathleen. That “something” is your knowledge of U.S. history and human nature. (And it’s probably the same everywhere else.)

      It’s too bad, since these issues are supposed to be the reason we need judges in the first place. Otherwise, we’d just have police.

    3. Also, “deferring to the local police” means abdicating the court’s responsibility to protect individual rights from police abuse.

  4. Naive question: What is the evidence that drugs make it more difficult to “maintain safety and order” in a jail, especially the quantities of drugs that only a strip search would find?

  5. The big problem the Supreme Court has always had is its uncritical love for bright lines and its reluctance to do anything that could be construed as engaging in judgements of policy.

    That can work out well in some cases — it’s probably one of the reasons why we have fairly unlimited freedom in speech while too many European courts worry about balancing freedom of speech vs. other rights — but in situations like this it’s simply hammering square pegs into round holes. Sometimes, adjudicating the law does involve more than just calling balls and strikes.

    I understand that even a hypothetical perfect government that is well-intentioned and respectful of civil liberties sometimes can’t avoid encroaching upon our rights. I can live with that. What I still want is that the government has to justify such an encroachment, and that the more severe the encroachment, the stronger the justification has to be. What I don’t want to see is our judges shying away from making judgement calls and instead writing blank checks to the executive. Sorry, guys [1], making hard decisions is exactly what we pay you the big bucks for.

    [1] I’m intentionally not using a gender-neutral term here, with apologies to Justice Breyer.

    1. I’m not sure I agree with you. The Supreme Court has promulgated more than enough three-point balancing tests in its time. What the courts generally avoid is not so much context as substance. They much prefer adjudicating procedure to substance. It makes a certain kind of low sense. Lawyer are the masters of procedure; they don’t know anything more about substance than anybody else.

    2. But this was an inherently policy-based decision. The majority in effect conceded the point that the policy could only be allowed if there was some reasonable justification for it. They then manufactured justification based on something or other.

      Breyer, OTOH, demonstrated that the policy had very little benefit, if any, and that it had been abandoned in many places without harmful effects.

      What we have are conservatives on the Court who think that jailing and strip-searching someone for not having their dog on a leash is perfectly fine, but requiring that same person to carry health insurance is an intolerable infringement of liberty.

  6. Am I wrong in thinking this is aimed at the Occupy movement? The cost of public protest just got a lot higher.

    1. Yes, but on the other hand, at least some prosecutors still have to be elected. We can hold them accountable for what the police are allowed to do (I think).

      I’m not actually sure who decides who gets arrested and so forth, come to think of it. For the major crimes I’d guess it’s all by statute, but I wonder if there’s discretion at the less-serious end of things. Maybe Josh would know this.

      On the one hand, you’d hope it would be legislators, because at least we can bounce them. But on the other hand, it’s so easy for them to be “tough on crime.” Especially since as Kathleen notes, these evils aren’t visited equally upon the population, regardless of who’s actually doing the drugs or (white collar) crime.

      1. There is some discretion even at the more-serious end of things. As probable cause and seriousness (and other factors) escalate, arrest and (possibly temporary) incarceration become increasingly likely.

      2. In California, there are a couple of ways that you can be arrested. If you commit a crime – be it infraction, misdemeanor, or felony – within view of a police officer, the officer can arrest you.

        If you commit a felony outside the presence of a police officer but the officer has developed probable cause to arrest you, that officer can arrest you. If the officer has probable cause that you’ve committed an infraction or misdemeanor outside of his or her presence, the officer cannot arrest you, but a percipient witness can perform a citizen’s arrest, at which time the officer will arrest you. (In other words, for misdemeanors and infractions, the officer only has the same arrest powers as anyone else; the one exception to this is for DUIs, per Vehicle Code section 40300.5.) If the witness declines to do this, the police officer can still file the report with the DA, and the DA can file an affidavit in support of an arrest warrant with the magistrate. The magistrate then issues the warrant, which the police serve.

        In practice, most police officers exercise a tremendous amount of discretion on their beat. There are always exceptions of course, and police officers are still people, subject to good days and bad, but officers generally don’t want to jam people up over really petty crimes.

        And the downside to electing your prosecutors – as with electing your judges – is that the vox populi doesn’t always clamor for justice.

  7. Remember when the conservatives were complaining about activist judges and big government and all that? What is more big government than being stripped and having a finger shoved up your booty hole and you didn’t even commit a crime? But that’s what conservatives want. Big government up your ass.

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