Any sane political junkie knows to keep his or her distance from the Supreme Court’s rulings. The Nine are the masters of sending the ultimate mixed signal, constantly throwing us off with their decisions – in this way, like a girl who puts a smiley after every text message. One day, they’ll be legalizing corporate electioneering (a la Citizens United), and the next day (or year), making sure everyone has the right to an effective lawyer in a plea bargain (a la Laffer v. Cooper). And then they’ll make a decision like the one on Tuesday that has everyone saying “What the…” and we’re back at square one.
After Florence v. Board of Chosen Freeholders of the County of Burlington, the Supreme Court ruled that, if you are arrested for any minor offense, you’re getting felt up by a boy in blue before being tossed into a jail cell. The 5-4 decision, the swing vote being (da-da-da!) Justice Kennedy, has institutionalized the strip search. Now, even for something as miniscule as an unpaid parking ticket, get ready to drop your shorts and pray for acquittal.
The fact pattern of the case is as follows: Albert W. Florence, a New Jersey resident who just so happened to be African-American, was riding shotgun in 2005 with his wife. She was pulled over for speeding and the cop pulled up records that showed that Florence had an outstanding arrest warrant out on his head for an unpaid fine (which later was found to be absolutely false – the fine was already paid and done with). He was then arrested, held and in two different jails in Burlington and Essex. In an interview last year, Florence graphically detailed an experience that pisses all over the Fourth Amendment: “Squat and cough. Spread your cheeks.” And this for a fine that no longer even existed.
In Justice Kennedy’s majority opinion, the Supreme Court sided with the touchy-feelies and argued that the court has no right to second-guess the correctional officer or the suspicion that any person brought into jail could be smuggling drugs, carrying a weapon, hiding a grenade somewhere under his or her armpit or equipping one’s self with a box cutter. And the example they gave for justification: Timothy McVeigh, the Oklahoma City bomber who was arrested beforehand and unsuccessfully strip searched, which, as logic states, led to his eventual homegrown terrorism flare. In the end, the Florence decision translates into universal crime coverage for all – that any American, as Jon Stewart stated on the Daily Show, could be a criminal. This idea has been rotting away in America’s core since the Bush era.
When President Obama chastised the Court for OD’ing on “judicial activism” in regards to his Obamacare baby, he was right but missed a significant point. Although the Roberts Court is riding off the steam left of the Rehnquist days, which, arguably, was the most activist court in American history, striking down hundreds of federal and state statutes over the years in the name of “restraint,” this era has transcended the past and its ways can best be defined as “judicial favoritism.”
In true Roberts Court fashion, the Court gave the authority in power the benefit of the doubt, similar to the Citizens United ruling when corporations were trusted with the permission to screw around with democratic elections without any sort of legal precedence. Yes, the decision is overwhelmingly activist in the sense that it strikes down federal doctrine, the law of ten states and most international treaties. But this mindset is different: the reasoning is not the degree of government intervention, it’s the trust and preference given to a now unchecked power; in this case, the guy that will soon have his hands down your pants.
But what makes the Florence case so uniquely uncomfortable is the forgetfulness the Supreme Court has applied to its own jurisdiction to favor these powers that be. By refusing to “second-guess” the corrections officer, the conservative wing, with Kennedy as the tag-along, is devaluing the entire reason we created the Supreme Court in the first place: to second-guess. And now we have to pay for this lack of self-respect. Spread your cheeks, America. The Supreme Court said so.