The Supreme Court bench, like a crowded jail, is a place where a person can do a lot of damage. I therefore propose that incoming justices be subjected to a strip search by a member of the same gender promptly upon taking the oath of office.
I do not suggest there is any reason to believe the justices are hiding drugs or weapons beneath their robes, though some of the court’s opinions do lead one to wonder what they may be smoking in chambers. According to the court, however, reasonable suspicion is no longer a prerequisite for a visually intrusive strip search, so long as it is in the service of security.
The court ruled 5 to 4 last week that corrections officers at two New Jersey facilities did nothing wrong by strip-searching a man who was detained after being mistakenly arrested for failure to pay a fine. The searches were standard operating procedure when new individuals were admitted to the general jail population.
Albert Florence had paid the fine years earlier. He had proof of this fact with him when he was arrested, en route to his mother-in-law’s with his wife and young son, but the state trooper who stopped him refused to believe the document.
According to court papers, Florence and other recent arrestees arriving at Essex County Correctional Facility, where he was taken after first being held for six days at the Burlington County Detention Center, “were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.”
Writing for the majority, Justice Anthony M. Kennedy argued that corrections officials “must have substantial discretion to devise reasonable solutions to the problems they face.” The jailers argued that allowing people arrested for minor crimes, as Florence was, to enter jail populations without maximum searches would give those intent on smuggling contraband a means of doing so. Kennedy did not tell us how Florence might have known in advance that a hyper-vigilant trooper would wrongly arrest him and accordingly prepare himself for contraband carriage.
It is not yet clear exactly what the impact of the ruling will be. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. each wrote separately to emphasize the limitations of the holding. Both pointed out that the ruling applies only to people who are committed to the general population of a jail, not necessarily to all people who are arrested or detained.
In his concurring opinion, Roberts stressed that Florence “challenged suspicionless strip searches ‘no matter what the circumstances.’” Therefore, Roberts said, in ruling against him, the majority establishes only that there are some circumstances in which suspicionless searches are reasonable, not that they are reasonable in all circumstances. He added that, in Florence’s case, “there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population.” Roberts also pointed out that “Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest,” apparently making the search somehow more reasonable. That the warrant was issued in error is beside the point.
Alito, meanwhile, suggested that correctional facilities may have a responsibility to hold certain minor offenders, though not all, separately in order to spare them the indignity of an intrusive search. “For these persons,” he wrote, “admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.”
With his acknowledgment that undergoing strip searches is “undoubtedly humiliating and deeply offensive to many,” Alito is the member of the majority who comes closest to everyday decency. But even he, by joining Kennedy’s opinion, claims that there are times when it is reasonable to force a person who has not been proven guilty of any crime, and who is not even suspected of a major crime, to endure this “undoubtedly humiliating” and “deeply offensive” experience without reason to believe that he or she may be trying to conceal anything.
There are no such times.
If corrections officials have no reasonable basis to search someone but are worried about placing him or her in the general inmate population, they have three options. They can hold the person separately, release him or her, or go before a judge to get a warrant for a search. One of these three options ought to be used in every case, not just in cases in which such “alternative” procedures are judged “feasible” by those whose own privacy is not at stake. The court majority apparently overlooked the Constitution’s prohibition against unreasonable search and seizure. Nobody forfeits any rights, including the right to control access and display of one’s own body, merely by virtue of being detained or arrested.
Justice Stephen Breyer, in his dissent, which was joined by the rest of the court’s more liberal wing, referred the 2009 case of Safford Unified School Dist. #1 v. Redding. In that case, the court ruled that school officials were wrong to require a 13-year-old to strip to her underwear, shake her bra and pull aside her panties in a search for the over-the-counter painkiller ibuprofen. Quoting the majority in that case, Breyer writes, “We have recently said, in respect to a schoolchild (and a less intrusive search), that the ‘meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.’”
But as I wrote at the time, the court did not go far enough even in that case. It did not say, as it could have, that a search of this nature would have been wrong under any conditions. It did not address the concerns parents might, and should, feel about the prospect of having a son or daughter endure such an ordeal. Instead, it suggested that the search could have been reasonable if only the officials’ suspicions had been a bit better founded. And, appallingly, Justice Clarence Thomas thought the school officials had been entirely in the right. This is not the sort of reasoning we would expect from individuals who truly understand the extent to which this sort of search falls into “a category of its own.”
In his dissent, Breyer also referred to the precedent set in the cases of Bell v. Wolfish and Turner v. Safley that “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” The problem here seems to be a different barrier - one separating justices of the Supreme Court from the concerns of ordinary citizens.
Adding a strip search as a requirement for membership on the nation’s highest court might not turn up any contraband, but it would destroy this barrier. In doing so, such searches would do far more to protect the public than did the searches to which Florence was subjected.