An Odd Week Ahead At The Supreme Court

By: Andrew Cohen
Topics: Domestic Issues

(AP)

Welcome to an odd week at the Supreme Court where the Justices get the rare opportunity to chime in on two cases that present facts that: 1) most Americans can understand, and; 2) most Americans are appalled by.

"Hard facts," lawyers say, make "bad law." This week we'll begin to learn what sort of law the Court is going to make with the "easy facts" before it.

(CBS)

First up at the High Court, on Tuesday, is the story of Savana Redding, then 13-years-old, who was sent to the nurse's office at her Safford, Arizona school, told to strip to her underwear, "move her bra to the side and pull her underwear out, exposing her breast and pelvic area."

Why? One of her classmates accused Redding of hiding prescription-strength Ibuprofen pills (which were never discovered). Redding's mom sued. The trial court sided with the school. The 9th U.S. Circuit Court of Appeals sided with Redding.

The question in the case is not whether students may be searched by school officials or the police. They may be. The Court has long held that public school students do not have nearly the same privacy rights as adults. Chances are the chattering classes would not be all agog over this story if the student was suspected of having a gun or a bomb and the search were not so intimate.

But the main question Tuesday is whether the intensity of the search was justified given the object of it—whether a suspicion of a few ibuprofen tablets warranted making a 13-year-old girl expose herself.

We all know what the answer to that question should be -- and probably will be. The only open question, then, is whether and to what extent the Court's majority establishes another standard to help the lower courts, and school officials, understand when they may or may not go so far in rooting out drugs (or violence, or whatever) in school. I do not envy Matthew Wright, the attorney of record for the school board, who has to stand in front of the Justices and explain what his client did to Ms. Redding.

And then comes Wednesday and a "reverse" affirmative action case that has water-cooler appeal. No doubt officials in the City of New Haven, Connecticut had good intentions when they administered a civil service exam for firefighters that would help determine which ones would be eligible for promotion. The idea was to help minority candidates rise within the ranks. Problem was, fourteen of the top fifteen test-takers were white. The City threw out the results of the test. And 19 white firefighters and one Hispanic firefighter sued, arguing that their rights had been violated.

Those "easy" facts, I reckon, will look like a big, ripe, juicy plum to the Court's conservative majority, who have been itching since the departure of Justice Sandra Day O'Connor to further restrict affirmative action.

The question in this case is whether a municipality can rig this sort of testing to avoid claims of racial bias against minorities by creating a form of racial bias against whites. I'd be shocked if the Court doesn't side against New Haven, and with the firefighters, with the only open question in this case being how much further the Court is willing to go in undercutting affirmative action.

It's too bad the Justices won't allow cameras in their beautiful courtroom because the rest of the week promises some must-see-action.

(CBS)
Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.

6 Comments Have Your Say
Email Story Send to a Friend
Share This Tell Your Friends
Tweet This Tweet This
More Share It

Add a Comment


by jet210 April 21, 2009 1:20 PM EDT: Children shouldn't be subjected to strip searches by school officials period. If they believe something illegal is going on call the law and the childs parents, these are the people who are recognized as the propere athorities to handle that type of situation. I still have some faith in this court to make the right ruling. As for affirmative action there is a fine line to be walked and I hope this Court can make find that line, although I have my doubts.; Reply to this comment


by stn_sage April 21, 2009 3:33 AM EDT: Well---if the court orders some time type of on site rectal examinations of kids suspected of having drugs in their
possession---and the vote was done in secret---we will
have reason to suspect which justice or two was "behind"
it!

I really hope they don't come up with any strange rulings in these two cases!; Reply to this comment


by DefendLiberty April 21, 2009 2:45 AM EDT: My guess is that "Is that a pube on my coke can" Thomas is putting a lot of thought into this one...
Posted by nancy_naive at 11:11 PM : Apr 20, 2009
======

"Never asked a question" Thomas will insist on "reviewing" the video of the strip search in private.; Reply to this comment


by stn_sage April 20, 2009 9:55 PM EDT: Almost everything this court does, surprises me!

I find its' members and their decisions---frequently---to be frightening!

I can't imagine what they will do when it comes to the two cases mentioned above in the article!

But, it probably won't be good! We shall see.; Reply to this comment


by DefendLiberty April 20, 2009 9:46 PM EDT: What Andrew Cohen seems to forget is that we now have FAR RIGHT NUTJOBS running the Supreme Court. Scalia, Thomas, and Roberts have NEVER seen a GOVERNMENT POWER that they EVER wanted to limit. In the minds of these TOTALITARIANS, the power of the government is ALL IMPORTANT. Strip search a 13-year old? Fine with them if the "authorities" simply want to do it.

The greatest risk to our liberty is in the slow decent into barbaric totalitarianism, justified by shallow men with limited understanding of the foundations of liberty. They believe that men should decide, and law should "enable".

"The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse." - President James Madison

"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness."
-- Justice William O. Douglas; Reply to this comment


by SusanStoHelit April 20, 2009 7:05 PM EDT: Good cases. It's obvious a child should not be strip searched except for illegal drugs or weapons, not ibuprophin - but how to make a ruling that appropriately sets a standard.; Reply to this comment