When it comes to criminal law, the justices seem all too willing to abandon their ideals of a hands-off government.
Albert Florence wasn't driving the car when it was pulled over on May 3, 2005; his wife April was. The officer asked the owner of the BMW to identify himself, and when Florence obliged, he was taken under arrest. An erroneous warrant (later attributed to a computing error) was the culprit. Florence was frustrated but wasn't surprised by the mistake. As the lawyer charged with arguing his case, Tom Goldstein, later deadpanned on The Daily Show, he had been arrested for "being black."
But what happened next would eventually take Florence all the way to the Supreme Court. As Garrett Epps recounted in an Atlantic post last October, Florence was hauled off to the local jail and, despite having not committed a crime, strip searched -- twice. The second search, conducted at "arm's length," required him to "open his mouth and lift his tongue, lift his arms, rotate, and lift his genitals." After he was released -- he was held for six days without being charged -- he sued: first in district court, before a reversal at the appellate level led to the high court itself. As always with Supreme Court cases, Florence v. Board of Chosen Freeholders of the County of Burlington was an issue of constitutional interpretation. Specifically:
Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.
Dispassionately separating the authority of government from the sovereignty of the individual is, of course, a function of the Court, and in the recent health care arguments, it delivered some of its most -- to borrow the phrasing of the New York Times -- "cerebral" considerations on the theme. As Justice Anthony Kennedy mused:
Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
Or as Justice Antonin Scalia lamented:
The federal government is not supposed to be a government that has all powers; it's supposed to be a government of limited powers ... What -- what is left? If the government can do this, what, what else can it not do?
Statements like these seemed to suggest the court could end up voting down President Obama's signature legislative accomplishment to date. But only a few days after conferring on health care, the judges issued their opinion on Florence, 5-4 allowing detention officers to strip-search for minor violations such as traffic stops and failing to leash a dog. Justice Kennedy authored the majority opinion (Justices Roberts, Scalia, Thomas and Alito -- broadly considered to be the conservative wing -- joined in the decision). A broccoli mandate? Not in my America. Jay walking? Drop those trousers.
The proximity of the two cases only underscores the apparent contradiction in logic. In a telephone conversation, University of Chicago Political Science Chair and Law Professor Bernard Harcourt addressed the inconsistency head on. "I think it is totally coherent in its paradoxical way -- but goes to the difference between economic and political liberty."