To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Friday, September 24, 2021

Observercast

The Thoughtful Justice

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BY DANNY M. ADKISON

The Supreme Court wasn’t getting along at the end of Chief Justice Rehnquist’s career. They don’t seem to be getting along now [in spite of the letters which passed between the retiring Justice Souter and the eight other justices on the court’s last day].

Viewing the court twice during the last week of its term that just ended, I was struck with how predictable the justices are. As always, there was Justice Ginsburg sitting completely still, head down so as not to face the room full of spectators. Justice Scalia is easy to spot as all that appears of his diminutive persona over the court’s bench is his head, resting back against the chair made to his dimensions [and hence, the smallest of the nine].

Thomas and Breyer, who sit next to each other, seem to be relaxing at the beach – particularly Thomas who leans back and reclines in his chair to the point that you would swear he must have a remote control in his hand. Breyer at least sits forward at times placing his head in both his hands. [Kennedy also has a penchant for doing this.]

The justices one’s eyes are not drawn to are the veteran Stevens and newcomers [Roberts and Alito]. If any justice had cause to slouch in his chair it would be Stevens at age 89! Yet, he sits erect and appears to be concentrating on every comment made. Roberts and Alito sit upright and don’t fidget, but still seem to be, at least mentally, somewhere else. As newcomers they act the part.

Justice Souter is young enough to continue serving [he’ll soon be 70] and he has no health issues. Why leave? Conventional wisdom has it that he hates DC and wants to retreat to his solitary life in New Hampshire. Insiders tell me that he has had enough of the squabbling on the court.

The media may see Justice Scalia as the court’s intellectual, but Souter is the genuine intellectual. Scalia is like the bright student in class who talks too much. He gets the attention and sticks in the teacher’s mind as the top student. There usually is, however, a more taciturn student who deserves the title more – that is Souter.

Yes, the justices sent Souter a nice letter telling him how much they would miss him. And yes, he read a letter to them telling them what they meant to him. This is all quite predictable and mostly for public consumption.

What got my attention in the last few days of the term wasn’t the pseudo sentimentality but the last opinion Justice Souter will ever author.

I am referring to Safford Unified School District #1 et al. v. Redding, handed down on June 25. This case had received some attention during oral argument [including in this space] because of an embarrassing comment made by Justice Breyer. As soon as Chief Justice Roberts announced to the packed chamber that Justice Souter would announce the case, I knew that it was probably the last time he would lead the court in supporting students’ rights.

In case you don’t know the case, it dealt with a “strip search” by school authorities of Savana Redding, a 13-year-old middle school honor student.

School authorities were looking for prescription strength ibuprofen and naproxen [and over-the-counter drug used for inflammation]. You would have thought that, given the manner in which they treated young Savana, school authorities were searching for anthrax.

Souter described the school’s search of Savana as “embarrassing, frightening, and humiliating.” He pointed out that strip searches are so degrading that some schools have banned them. Most telling of all, though, was the failure of the school officials to ask the right questions.

It was a classmate [the only one found with pills in her possession] who told school authorities that she got them from Savana. It was Justice Ginsburg who pointed out the school’s error in handling the case. When they questioned Savana’s accuser they did not ask the common sense questions: “When, where, and for what purpose did Savana give you the pills?” These simple questions would probably have established solid grounds for rejecting the veracity of the accuser [and prevented the search].

Furthermore, the school never tried – before conducting the strip search – contacting Savana’s parents, and the assistant principal made Savana sit on a chair outside his office for two hours following the search.

Souter’s opinion in the case was measured and empathetic. And although Justices Stevens and Ginsburg were more caustic in condemning the school’s administrators, he managed to get seven other justices to join in his ruling that the strip search violated the Fourth Amendment. The sole justice who found nothing constitutionally wrong with the search was Thomas.

Justice Souter will be missed.

The author teaches constitutional law at Oklahoma State University and is a regular contributor to The Oklahoma Observer

Arnold Hamilton
Arnold Hamilton became editor of The Observer in September 2006. Previously, he served nearly two decades as the Dallas Morning News’ Oklahoma Bureau chief. He also covered government and politics for the San Jose Mercury News, the Dallas Times Herald, the Tulsa Tribune and the Oklahoma Journal.