Thursday, July 2, 2009

Justice Souter's Farewell

I am going to miss Justice Souter. After 19 years on the bench, he bid farewell to his colleagues and the Court:

I will not sit with you at our bench again after the Court rises for the Summer this time, but neither will I retire from our friendship, which has held us together despite the pull of the most passionate dissent.

Prior to leaving, Justice Souter issued a wonderfully-worded decision supporting students' rights. A school forced a 13 year old girl to show her bra and underpants to see if she had ibuprofen. The Court ruled 8 to 1 in favor of the student, with only Justice Thomas dissenting. See Safford v. Redding (2009). Full decision here (warning, PDF file). The decision is a perfect example of Justice Souter's even-handed, reasonable style:

Savana’s [the 13 yrs old girl] subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” Here, the content of the suspicion failed to match the degree of intrusion...Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.

Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.

Makes sense, doesn't it? It's sad that we need the Supreme Court to tell us that government officials shouldn't be able to search a girl's private parts for Advil. If the school was that concerned about the girl's safety, why didn't they send her to the nurse's office and wait for her parents to come see/check her?

The Safford decision is a perfect example of Justice Souter's knack for getting past drama and tying the law to common sense. He will be missed.

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