WASHINGTON -- There was so much talk of anal cavities at the Supreme Court Wednesday morning that Justice Antonin Scalia asked, "You want us to write an opinion that only applies to squatting and coughing?" The comment provoked groans in the courtroom. But the groans could have just as easily applied to oral argument itself in Florence v. Board of Chosen Freeholders of the County of Burlington, which did more to confuse than enlighten the justices about the constitutionality of a jail's routine strip-searching of all newly admitted arrestees, regardless of the gravity of their alleged offense.
In 2005, Albert Florence and his family were driving to his mother-in-law's house when police pulled the car over. He was arrested, handcuffed and carted off to jail -- all because a New Jersey county had failed to scrub from its system a civil contempt order for failure to pay a fine that he had since paid in full.
Upon his entry to the jail, Florence was instructed to open his mouth, take off his clothes, lift and rotate his genitals, and shower in front of an officer. Six days later, he was transferred to another facility where he went through a similar search, except this time it was conducted with other detainees present and he was asked to squat and cough.
When Florence was finally released a week after his arrest, he sued the facilities and their officers, arguing that they had violated his Fourth Amendment right to be free from unreasonable searches.
On Wednesday morning, Florence's lawyer, Thomas Goldstein, wasted no time in asking the Court to adopt a categorical rule that "a jail may strip-search an arrestee in cases of reasonable suspicion" that the arrestee may be carrying contraband. The justices wasted no time in turning that categorical rule into a mushy mess.
First, Justice Ruth Bader Ginsburg -- who has offered the opening question in nearly half of the cases argued so far this term -- asked if the reasonable suspicion rule should be applied to "all arrestees" or just to "less serious offenders" such as Florence. When Goldstein maintained his categorical stance, Justice Anthony Kennedy built upon Ginsburg's question, asking if "the reasonable suspicion test is more easily met if it's a felon detained for a serious felony."
Goldstein granted that there was some play in his rule. For instance, while minor offenders with no history of violence should not be strip-searched, jails could strip-search someone charged with a violent crime because the crime itself could create a reasonable suspicion that he was carrying contraband.
At this point, Kennedy tipped his hand. "It seems to me that your rule imperils individual dignity in a way that the blanket rule does not," he said, referring to the policies of the New Jersey county jails who strip-searched every arrestee regardless of suspicion.
"Dignity" is Kennedy's guiding light on the Court, and he will vote for whatever side respects the individual's dignity the most. And according to Kennedy, Goldstein's rule, which would be applied on a detainee-by-detainee basis, might lead to strip-searches "based on the person's race" or other arbitrary and constitutionally forbidden affronts to personal dignity.
Justice Sonia Sotomayor thought another part of Goldstein's rule was too arbitrary to be adopted. Responding to Ginsburg's inquiry over what kinds of searches jails could conduct in the absence of reasonable suspicion, Goldstein answered, "Anything other than looking at a close inspection of the person at arm's length." Sotomayor had trouble with a rule that sounded more like a force field generated by the particulars of Florence's experience. "That is a line," she said, "that doesn't make much sense to me."
By the end of oral argument, however, Sotomayor would be Goldstein's staunchest ally. When the lawyer for the jails, Carter Phillips, was presenting their side, Sotomayor sought to undermine the rationale for the suspicionless strip-searches. Noting that a policy of reasonable suspicion for minor offenders has been "fairly successful," she pointed to studies saying that most contraband coming into prisons is not "on intake." Rather, she said, the real problem is "corrupt correction officials."
And after Justice Stephen Breyer noted the paltry evidence that minor nonviolent criminals smuggle in contraband, Sotomayor expressed her exasperation to Assistant Solicitor General Nicole Saharsky, arguing on behalf of the United States in support of the New Jersey jails. Sotomayor, who is the Court's lone former trial judge, insisted that "at some point empirical evidence has to mean something in terms of us judging the question of reasonableness."
Kennedy, too, was troubled by the "somewhat skimpy" evidence. But this may not be enough to persuade him to see things Sotomayor's way. For safety's sake, Kennedy suggested, another person in Florence's position "might well prefer an institution where everyone has been searched before he or she is put into the population."
On this point, Scalia may have been right about how the case will be decided. Unlike Scalia, who telegraphed his vote fairly quickly by rejecting Goldstein's argument on originalist grounds, most of the other justices had difficulty finding some principle on which to pin what will likely be a party-line vote. For the first time this term, Kennedy seemed to be the swing vote, and how he decides may well turn not on Florence's sense of indignity, but rather on that hypothetical person thankful for the compulsory squat-and-cough.