'The Most Humiliating Experience I Have Ever Had' -- Why Is the Supreme Court So Callous About Privacy?

By Liliana Segura, AlterNet. Posted May 9, 2009.

In the absence of empirical data, Breyer turned to anecdotal evidence to expand on his point of how normal it is for adolescents to stick things in underwear.

"In my experience, when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day; we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear…" -- this claim was met with hearty laughter -- " … Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience, not beyond human experience."

"But the 'not beyond human experience' standard is not the standard that governs whether the Fourth Amendment is violated," protested attorney Adam Wolf.

The Court and 'Human Experience'

There are many reasons the transcript in Redding v. Safford Unified School District No. 1 is ripe for parody. In one exchange, about contraband items at school, Scalia was apparently surprised and somewhat amused to discover that some students bring them to school "for sniffing."

Scalia: Oh, is that what they do? … They sniff them?

Matthew Wright: Well, that's the -- I mean, I'm a school lawyer. That's what kids do, Your Honor, unfortunately, Your Honor. But --

Scalia: Really?

At other points the justices indulged in lengthy theoreticals over what should have happened were the drugs in question meth, cocaine or heroin -- and whether saying that strip searches are appropriate in public schools should be understood to mean that body-cavity searches, too, might be.

("I can say to this Court you will not restrict or in any way inhibit the discretion of an administrator by saying you can't go there on a body-cavity search, nor would they want to, nor are they clinically trained to," the attorney for the school district took pains to clarify.)

But the dark humor of the oral arguments boiled down mainly to a vast gulf between the justices' take on what qualifies as "human experience" and more than half of society's. Only Justice Ruth Bader Ginsburg, the only woman on the bench, seemed not to lose sight of the fact that in the case at hand, a 13-year-old girl had been baselessly stripped, literally, of her privacy in a highly invasive and public manner on school grounds.

"After Redding was searched and nothing was found," said Ginsburg, "she was put in a chair outside the vice principal's office for over two hours, and her mother wasn't called. What was the reason for that humiliating, putting her in that humiliating situation?"

Lithwick -- who wrote perhaps the best play by play on the Redding arguments -- wrote, "Even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen."

But indeed, it is on precisely this level of "human experience" that the Supreme Court bench seems so pathetically lacking.

Judicial Empathy?

One day after the oral arguments in Redding, the Supreme Court handed down a surprising decision in another Fourth Amendment case out of Arizona.

In Arizona v. Gant, Tuscon resident Rodney Gant was arrested for driving with a suspended license (and for failure to appear in court on a prior charge of driving with a suspended license). Gant, who was outside of his car at the time, was handcuffed and locked in the back of a patrol car. Police officers then searched his car and discovered cocaine in the pocket of a jacket lying in the back seat.

Attorneys for Gant argued, all the way up to the Supreme Court, that this search violated his Fourth Amendment rights. After all, Gant was not arrested on suspicion of possession of drugs. Nor did his proximity to his car pose a threat to the police officers (as required by legal precedents). The police had no reason to search his car.

In a surprising move, the Supreme Court agreed, handing down a ruling that was widely hailed as a win for Fourth Amendment rights. In a 5-4 decision written by Justice John Paul Stevens, the majority decided that "police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest."

See more stories tagged with: supreme court, fourth amendment, savana redding, arizona v. gant, safford unified school di

Liliana Segura is an AlterNet staff writer and editor of AlterNet's Rights & Liberties and War on Iraq Special Coverage.

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