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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, April 03, 2012

Hyperbole

I think the strip-search ruling was incorrect, but "police state logic" is a bit much, especially since it did not give "free rein" or "radically" do anything.  Why not, e.g., note even Roberts and Alito reached out to narrow it? Hyperbole is not the way to address wrong-minded actions.

Rachel Maddow cited this ruling as another case of the "5-4" splits in the Supreme Court, highlighting the fact the person (in jail for days with the general population) was wrongly arrested.  The minority here did not have some "turns out he was innocent" rule that would bar requiring new inmates to have a shower (and allow prison guards to watch -- this was provided to show the unreasonableness of the more close-up search here) or be checked by doctors.  Even "more than once."

As to the "free reign" of the opinion, why not quote CJ Roberts:
I join the opinion of the Court. As with Justice Alito, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. Justice Kennedy explains that the circumstances before it do not afford an opportunity to consider that possibility. Ante, at 18–19. Those circumstances include the facts that Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population.
So, RM's dog walking violation very well might not be treated the same.  Justice Alito recognized the "undoubtedly humiliating and deeply offensive" of these strip searches, which might be why he went out of his way to comment on this matter. As noted by the SCOTUSBlog discussion linked yesterday, these qualifiers, these bits of judicial minimalism, very well might be why the ruling took so long to be handed down. Alito, notwithstanding his conservative cred, has shown concerned for privacy in the past.  His concurrence in the GPS case might be more inexact than the majority, but it would recognize violations of the Fourth Amendment even without a direct property violation.

Not denying the guy is repeatedly wrong (his performance during the PPACA orals left a lot to be desired), but like the knee-jerk "Thomas is a Scalia toadie" comments, Alito is not just some knee-jerk fascist either.  This matters.  The PPACA orals got some more attention because of the "controversial" nature of the President's comments on judicial activism and the obvious constitutionality of such an important law. Some think he was "throwing rocks at tigers," which seems a bit infantile.  Can we grow up here?  Is he not allow to speak about such a major issue during the election season because Kennedy et. al. might have hurt feelings?

[Update: Absurdity. It's not the 9th Cir., so it's okay, you know?]

Anyway, back to the ruling.  It earned some scorn, the Timothy McVeigh bit pretty blatant trolling ("People detained for minor offenses can turn out to be the most devious and dangerous criminals.")  Even there, was there any evidence he or the serial killer cited was hiding a razor blade where the sun doesn't shine?  The dissent cites a slew of authorities, including practice by the U. S. Marshals Service, the Immigration and Customs Service, and the Bureau of Indian Affairs, to support the "reasonableness" of the approach the four justices would use.  Still:
The case is limited to strip searches of those arrestees entering a jail’s general population, see 621 F. 3d 296, 298 (CA3 2010). And the kind of strip search in question involves more than undressing and taking a shower (even if guards monitor the shower area for threatened disorder). Rather, the searches here involve close observation of the private areas of a person’s body and for that reason constitute a far more serious invasion of that person’s privacy.  ...
The circumstances before the Court, however, do not present the opportunity to consider a narrow exception of the sort Justice Alito describes, post, at 2–3 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer, and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here. 
The ruling is wrong but addresses a limited reach of cases and will not (unless they change their rules or in some cases, probably, state courts do not hold state constitutional guidelines are more strict) affect a lot of prisons in any immediate way.  The mind-set is troubling, but the opinion was written by the same person who addressed overcrowding in California.  Two Bush appointees went out of their way to send red flags to willing lower court judges of the ability to restrict its reach. Like Santorum speaking out against an explosion outside a Planned Parenthood Center, there are important limits placed here.

A bit quite unlike your garden variety "police-state."