Supreme Court Justice Anthony Kennedy made an absolutely terrible decision in voting with the four conservative justices that strip searches are permitted in all circumstances. The Constitution prohibits unreasonable searches and getting strip searched for the most minor offenses, such as jay walking or littering, is as unreasonable as it gets. Our founding fathers are no doubt rolling over in their graves in complete disbelief about this decision.
The decision shows that "conservative" and being a strict constructionist when it comes to interpreting the Constitution have nothing necessarily to do with one another. The liberal justices who voted against this decision were, in this instance, playing the role of strict constructionists.
I'm not a legal expert and may update this blog once I've consulted with legal experts, but I presume Congress can pass a law, which I would sign as President, to outlaw strip searches absent a reasonable suspicion of contraband.
The most troubling aspect of this decision is Justice Kennedy's stated reasons for giving police carte blanche to strip search any American who might, for example, fair to use her/his turn signal. Justice Kennedy said that notorious fellons have, on occasion, been picked up for minor offenses. But this is as significant a non sequitur as one can produce. The examples the Justice gave were of the Oklahoma City bomber and one of the 9-11 terrorists. Both were detained by police for minor violations and then released to perpetrate their heinous crimes. But strip searching them would have made no outcome whatsoever to the course of events.
Justice Kennedy's opinion references a person arrested for disorderly conduct in Washington State who "managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity." Officials in San Francisco, he added, "have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting."
Is the good justice serious? Is the hiding by one or even a thousand miscreants of a lighter, tobacco, and tattoo needles in the rectal cavity grounds for permitting the police to search the rectal cavities of 310 million people based on nothing more than their whim or custom?
One of the hallmarks of civil protest in this country is being willing to march illegally or sit illegally or occupy a bus seat illegally or enter a restaurant counter illegally and the list goes on. What Justice Kennedy has done is to provide the police with a further means of intimidating non-violent protesters in times of non-violent civil disobedience. He has done a grave misservice to the country, which I expect will trouble him to the end of his days.