I, too, want to focus on the surprise that was Safford Unified School District v. Redding, the Arizona strip-search case. After a towel-snapping oral argument, in which only Justices Ruth Bader Ginsburg and John Paul Stevens appeared to think that stripping a 13-year-old girl down to her underwear and bra in a quest for prescription-strength ibuprofen (ibuprofen! says Linda) was far beyond the acceptable bounds of what school administrators may reasonably do under the Fourth Amendment, today was like watching a whole different court.
Justice Ginsburg appeared no less horrified by her colleagues' cluelessness at oral argument than she was by the search itself, and she had made that plain, both at argument and in an interview with Joan Biskupic of USA Today this spring. I was in court for opinions today, and when Justice David Souter, who had seemed to be leaning toward permitting the search at oral argument, began reading the opinion, I wondered whether Ginsburg was about to explode in furious dissent. Her face (as always?): perfectly impassive. When Souter went on to read an 8-1 decision holding that the search of Savana Redding in this case was not reasonable under the Fourth Amendment (Thomas concurring in part and dissenting in part), it was as if the whole court had entered the 21st century. The standard set out in the 1985 school search case New Jersey v. TLO allowed students to be searched so long as "the search as actually conducted [is] reasonably related in scope to the circumstances which justified the interference in the first place." TLO further held that the scope is permissible when it is not "excessively intrusive in light of the age and sex of the student and the nature of the infraction."
Writes Souter, describing the failure of administrators to make less-intrusive inquiries about the likelihood of Savana stashing drugs in her undies before stripping her down: "What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs to 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." As Linda observes, this is a pretty deferential standard. If the school believed the drugs were dangerous and in her bra, the search might be OK.
And then Souter refused to find that the illegality of such searches is so "clearly established" that the school officials should be denied qualified immunity. Souter writes that the law in this area is sufficiently fuzzy to shield them from suit. Here's where John Paul Stevens and Ginsburg, in their respective partial concurrences and dissents, get a bit steamed. Ginsburg writes: "I agree with the Court that Assistant Principal Wilson's subjection of 13 year old Savana Redding to a humiliating stripdown search violated the Fourth Amendment. But I also agree with Justice Stevens that our opinion in New Jersey v TLO 'clearly established' the law governing this case." She concludes, "Wilson's treatment of Redding was abusive and it was not responsible for him to believe that the law permitted it." She would deny him qualified immunity.
Justice Clarence Thomas, for his part, dissents as to the illegality of the search under the Fourth Amendment. Whether or not the administrators searched Savana's underwear was immaterial. "Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under TLO."
OK, so what I need to know is what happened between oral argument and today that appeared to change the minds of the seven other male justices? On the way out of court today, I thanked Joan Biskupic and NPR's Nina Totenberg for their strong, brave pieces after oral argument. Ginsburg and Stevens turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser. OK by me. Last question: Having looked, just briefly, at Justice Souter's majority opinion, does Redding offer any clearer guidance about the appropriate standard for future humiliating searches than TLO? Is whatever law that was not clearly established in that case any clearer now?