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."

Harcourt, who is the author of The Illusion of Free Markets: Punishment and the Myth of Natural Order, calls it the "Great American Paradox" -- a constitutional duality dating back to the 18th century, in which "they actually believed that you didn't need a legislative branch, you only needed an executive branch. Because in economics, any man-made law would actually get in the way of natural order ... because there was natural law -- the markets -- that already governed people." In turn, lawmakers hypothesized, "There was only one thing we need legislation for. And that was criminal law. And you see it today."

As Harcourt wrote after the decision, "Notice, of course, the difference -- or paradox -- with last week's Supreme Court arguments about economic liberty and the health care mandate. The American ideal of a hands-off government seems to apply only in the context of economic liberty." Justice Kennedy's opinion in Florence concluded, "Courts must defer to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items."

And why would correctional officials have reason to suspect a worst-case scenario, even with the most innocuous infractions? "One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93."

It was in this context -- invoking our most ignominious villains -- that the Court couched the unique authority it would be granting corrections officers. For men: "Spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must, in addition, squat to expose the vagina."

Already there is buzz in Washington that should the Affordable Care Act be struck down, President Obama will base at least part of his reelection effort on "running against the Court" - a theme he hinted at last week when he derisively referred to the justices as "an unelected group of people" whose involvement could be "unprecedented." But the mixed messages from the Court suggest that dressing its justices in "left" and "right" robes oversimplifies the nature of the schism.

In a somewhat poignant exchange during the ACA hearings, Solicitor General Donald Verrilli tried to establish a human connection to the case, arguing that "there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty."

Paul Clement, arguing against the individual mandate, had an arrow in his quiver. "I would respectfully suggest," he said, "that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."

The justices were impressed, if only for a moment.

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