Academic

Did A Wise Woman Justice Change The Outcome Of Safford v. Redding?

By Dan Filler

Apropos of the start of today's hearings, and all the hullabaloo over Sotomayor's wise Latina comment, it's useful to ask whether the existence of a wise female Justice on the Supreme Court altered the outcome of a major case.  Did Justice Ginsburg singlehandedly change the result in Safford Unified School District v. Redding - the school strip search case?  Perhaps.

In Safford, the Court considered whether the school's strip search of Savana Redding - in a desperate effort to find Advil - violated the Fourth Amendment.  Remember when the case was argued?  Most of the Justices seemed, shall we say,  skeptical.  The LA Times told us that "Justices appear unconvinced that the searches should be declared out of bounds."   The AP reported that  "the Supreme Court seemed worried Tuesday about tying the hands of school officials looking for drugs and weapons on campus as they wrestled with the appropriateness of a strip-search of a 13-year-old girl."

And there are the quotes: Justice Souter said:  "My thought process is, I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry."  Justice Breyer seemed to think this remarkable fact pattern was a hoot and he regaled the Court with what he understood to be his own similar 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, O.K.? And in my experience, too, people did sometimes stick things in my underwear.?  When Breyer stopped laughing, his comments showed he really didn't see the gravity of a strip search:  "I'm trying to work out why is this a major thing to say, 'Strip down to your underclothes, which children do when they change for gym."

But even during argument, Justice Ginsburg had a different take - perhaps the wise woman's view - on the case.  As reported by the Post:

Ginsburg laughed [at Breyer's comment]  but mostly she was serious and sympathetic when it came to Redding's experience. She was addressing [Redding's attorney] Wolf, but speaking more to her colleagues, when she said, "I don't think there's any dispute what was done in the case of both of these girls," referring to Redding and a girl who was caught with the ibuprofen tablets and who then accused Redding [and addressing Justices who minimized the intrusion]. "It wasn't just that they were stripped to their underwear. They were asked to shake their bra out, to -- to shake, stretch the top of their pants and shake that out".... Ginsburg was also the toughest questioner of [the school's attorney] Wright, calling the events of the day "humiliating" for Redding and saying school officials searched her on the basis of the other girl's accusations "with no questions asked at all."  

And if there was any question that she was serious about getting the word across to her colleagues, she took the unusual step of commenting on this active case a couple of weeks later.  Speaking to the USA Today, Ginsburg said:

""They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

A couple of months later, the skeptical Court held the search unconstitutional.  And if Justice Ginsburg made the difference, was this simply because she went to the best schools?  Or could it have been that she brought a perspective the other Justices missed?  Hobbled by their limited experience, and in many cases privileged status, might the other eight  Justices have simply been incapable of arriving at the better conclusion in the case...without the help of a wise woman?   

Full post as published by The Faculty Lounge on July 13, 2009 (boomark / email).