Overruled


My Greatest Fear
April 22, 2009, 9:09 am
Filed under: Ian | Tags: , ,

advilOnce again, Dahlia Lithwick puts her finger on my single greatest fear as an attorney.

For those who are unfamiliar with the case, the Supreme Court heard oral arguments yesterday in a case considering whether a middle school could strip search a 13 year-old honor student because she was suspected of carrying ibuprofen.  For any sensible person, the answer is an obvious “no,” but, as Dahlia tells the story, many of the Justices viewed this question with the sort of detached obliviousness one would expect from a race of super-intelligent aliens asked to judge humanity through telescopes.  Justice Breyer pondered whether a strip search is really all that different from being asked to change your clothes before gym class.  Chief Justice Roberts suggested that it would be ok to search a young woman’s “brassiere” so long as the school officials did not probe into her panties.

And the truth is, part of me empathizes with these Justices.  When I was a clerk, I spent many hours pondering whether a particular matter was governed by Federal Rule of Civil Procedure 59, or FRCP 60.  I agonized over whether a legal rule was “clearly established” or merely just established at the time of a particular event, and I wrestled constantly with the difference between an “unreasonable” finding of fact, and one that was simply wrong.  When faced with such hypertechnical questions, it is easy to forget that they are not purely academic, and that these questions often arise from another human being’s personal tragedy.  It is easy to forget that legal rules are the tools we wield to accomplish justice; they are not justice in and of themselves.

So I understand how some members of the Supreme Court can lose sight of the fact that it is not ok to order a young woman to take off her clothes because you suspect her of carrying a harmless painkiller.  I just pray that I never become like them.

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Supremes Don’t Care if School Officials Strip Search Your Daughter To Look for Advil…

by Damozel | Chief Justice Roberts said it is probably reasonable for a school official to demand that your kid shake out her bra, which is what happened to 13 year old Savanna Redding, strip-searched by [female] school officials in Arizona on suspicio…

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[…] he is about to join a decision (most likely a majority decision) holding that school principals can strip search 13 year-old girls who are suspected of carrying Advil.  If I were looking to do something completely appalling at the very moment that the nation turns […]

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