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Strip-search ruling bares tensions on court

This article first appeared in the St. Louis Beacon, April 6, 2012 - The U.S. Supreme Court's recent 5-4 ruling upholding the strip search of a man who had been mistakenly arrested has drawn some interesting critiques.

Bruce La Pierre, a law professor at Washington University, noted in an email that 8th U.S. Circuit Court of Appeals in St. Louis showed more concern in a 2008 decision about the rights of a person in custody than did Justice Anthony M. Kennedy, who wrote the majority opinion last Monday.

La Pierre wrote that it was "informative" to compare the 8th Circuit's decision in Serna vs. Goodno to Kennedy's opinion. The 8th circuit "shows greater concern for careful balancing of institutional security and individual interest in avoiding intrusive searches," he wrote. La Pierre added that the 8th circuit "is hardly a 'liberal' circuit."

The 8th circuit case involved the strip search of a person considered a dangerous sex offender in Minnesota. The appeals court came to the same conclusion as the U.S. Supreme Court: The strip search was justified and was not a violation of the man's Fourth Amendment right against unreasonable searches.  But the opinion spent much more time than Kennedy's laying out the rights of the person being strip searched.  Kennedy dwelled instead on the institutional reasons supporting strip searches in custodial situations.

Linda Greenhouse, the former Supreme Court reporter for the New York Times, took a somewhat different tack on the decision.  She noted that one part of  Kennedy's opinion had stated some limitations to the ruling. For example, he said the court was not necessarily approving strip searches that involved touching.

But one member of the majority, Justice Clarence Thomas, refused to sign on to that part of the opinion. Nor did Thomas explain himself. Greenhouse called this a "wildly uncollegial act."

Greenhouse's point relates to the big health-care case now before the court.  She says the strip-search decision shows the "tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-to-4 narrative" of conservative versus liberal justices.

She also pointed out an interesting line from Chief Justice John Roberts' opinion in the strip-search case.  Writing about the limitations of the court's ruling, Roberts said it was "wise to leave open the possibility of exceptions, to ensure that we not ‘embarrass the future’" -- a quotation from the late Justice Felix Frankfurter.

Greenhouse wondered if Roberts might have on his mind the potential institutional embarrassment of a 5-4 decision striking down the health-care law.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.