The Supreme Court's 4-1 Split

Plenty of attention has been paid recently to splits on the Supreme Court: Who will divide with whom on the Affordable Care Act? Will the existence of a 5-4 split between Democrats and Republicans on the Court mean a permanent judicial assault on the New Deal? And so on.

But the Court's most serious split seems to have escaped comment. This is a split in the bowling sense, when someone takes down two pins that are far apart by having Pin #1 ricochet off Pin #2.

In deciding that a strip search without suspicion of contraband passes muster under the 4th Amendment, the Supreme Court managed to knock out the 1st Amendment at the very same time. At a time when local governments are already over-regulating speech and assembly (just ask me, I'm from Chicago), the Court's decision poses a very real threat to widespread citizen participation in protest.

Many of us have been willing to go into the streets to protest things: the war in Afghanistan, income inequality, even -- especially -- the very fact of trying to criminalize protest. And many of those (in a proud line of descent from Henry David Thoreau) have been willing to be jailed for civil disobedience, if protest requires that.

But how many of us will be willing to go to jail and risk being strip-searched? Just the thought of that violation of my privacy has me wondering whether it's worthwhile to raise my voice. The Supreme Court has just eradicated all the First Amendment jurisprudence protecting protesters from the "chilling effect" of excess regulation -- and without so much as reading briefs or hearing arguments on the subject. A neat trick, that.

It's hard to admire the skill of the bowler, though, when you're one of the ones being knocked down.

 

Comments

[dan laurie]

03:53 PM on 04/14/2012

2011year-endreport.pdf
on Judicial Ethics. the lower federal courts, its committees have no mandate to prescribe rules or standards for any ot the lower federal courts, the Supreme Court is exempt from the ethical principles that lower courts
2009 Term Opinions of the Court
Supreme Court Calendar (PDF) (October Term 2011) Supreme Court Fellows Program Supreme Court Fellows Program
Why is the Supreme Court exempt from the ethical standards of the lower Courts?Was this a fatal flaw of the fore fathers to not make those same standards apply to The supreme Court?

[Kelly Kleiman]

09:29 PM on 04/20/2012

The decision that the Supreme Court is exempt from ethical standards was not made by the Founders, who may or may not have contemplated Supreme Court review of the constitutionality of legislative action. Traditionally the bench and bar have set their own ethical standards (in England and English-descended legal systems) and it's worked well enough until now. No document, however brilliant its framers, can protect against deliberate acts of tyranny or illegality; that's up to us to fix through our votes.