Did A Wise Woman Justice Change The Outcome Of Safford v. Redding?

Apropos of the start of today's hearings, and all the hullabaloo over Sotomayor's wise Latina comment, it's useful to ask whether the existence of a wise female Justice on the Supreme Court altered the outcome of a major case.  Did Justice Ginsburg singlehandedly change the result in Safford Unified School District v. Redding - the school strip search case?  Perhaps.

In Safford, the Court considered whether the school's strip search of Savana Redding - in a desperate effort to find Advil - violated the Fourth Amendment.  Remember when the case was argued?  Most of the Justices seemed, shall we say,  skeptical.  The LA Times told us that "Justices appear unconvinced that the searches should be declared out of bounds."   The AP reported that  "the Supreme Court seemed worried Tuesday about tying the hands of school officials looking for drugs and weapons on campus as they wrestled with the appropriateness of a strip-search of a 13-year-old girl."

And there are the quotes: Justice Souter said:  "My thought process is, I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry."  Justice Breyer seemed to think this remarkable fact pattern was a hoot and he regaled the Court with what he understood to be his own similar experience:  “When I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day. We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”  When Breyer stopped laughing, his comments showed he really didn't see the gravity of a strip search:  "I'm trying to work out why is this a major thing to say, 'Strip down to your underclothes, which children do when they change for gym."

But even during argument, Justice Ginsburg had a different take - perhaps the wise woman's view - on the case.  As reported by the Post:

Ginsburg laughed [at Breyer's comment]  but mostly she was serious and sympathetic when it came to Redding's experience. She was addressing [Redding's attorney] Wolf, but speaking more to her colleagues, when she said, "I don't think there's any dispute what was done in the case of both of these girls," referring to Redding and a girl who was caught with the ibuprofen tablets and who then accused Redding [and addressing Justices who minimized the intrusion]. "It wasn't just that they were stripped to their underwear. They were asked to shake their bra out, to -- to shake, stretch the top of their pants and shake that out".... Ginsburg was also the toughest questioner of [the school's attorney] Wright, calling the events of the day "humiliating" for Redding and saying school officials searched her on the basis of the other girl's accusations "with no questions asked at all."  

And if there was any question that she was serious about getting the word across to her colleagues, she took the unusual step of commenting on this active case a couple of weeks later.  Speaking to the USA Today, Ginsburg said:

""They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

A couple of months later, the skeptical Court held the search unconstitutional.  And if Justice Ginsburg made the difference, was this simply because she went to the best schools?  Or could it have been that she brought a perspective the other Justices missed?  Hobbled by their limited experience, and in many cases privileged status, might the other eight  Justices have simply been incapable of arriving at the better conclusion in the case...without the help of a wise woman?   

Comments

[Lawrence]

The implication of this analysis is that the Court would have reached a different decision had the search been of a 13-year-old boy. So much for equal protection.

[Jennifer Hendricks]

I didn't see or listen to the oral argument in Safford, but based on reading the transcript, I thought the predictions they would uphold the search were overblown.

It appears to have helped that it was a girl. That is not necessarily an indictment of the court. One of the reasons that diverse experiences are helpful is that they help show us our unconscious prejudices. The holding would apply to both girls and boys no matter which way the case had been decided. To the extent that girls and boys may have different typical experiences, shouldn't both be taken into account when fashioning the general rule?

It is interesting that there are different standards of modesty for girls and boys (and to a lesser extent, I think, women and men), even around others of the same sex. For example, back when I was a camp counselor, the boys' bath house had a gang shower, while the girls' had individual stalls; girls often kept their clothes on until they were behind the curtain. In gym locker rooms, many women change their clothes in the toilet stalls rather than by the lockers--don't know if men do the same.

[John]

Uhhm, 13 is a pretty sensitive time for young boys, too. I would have been mortified. No dice on the double standard.

[Steve]

Could it be that oral argument is less indicative of final case dispositions than most Court analysts presume? I thought the point of oral argument was to test the outer bounds of each party's legal theories developed in the briefs, not to give Court reporters fodder for Slate columns about how the mean conservative Justices don't care about the plight of young girls because their questions come across as callous.

[Judith]

How about having a diversity of justices makes it more likely that the justices can see what happens in the context of real humans? That I think is the accurate way to interpret Sotomayor's comments too. Having only old white men on the bench will ensure that they will not be able to relate to a young Latino woman being discriminated based on pregnancy, or a young girl being strip searched.

I am quite sure that Ginsburg would've advocated the same results for a young by, by the way, Lawrence.

[Lawrence]

Hi Judith,

I think you are correct that Ginsburg would have advocated the same results for a young boy, but let's suppose that a male student had been strip searched. I doubt Ginsburg would have told USA Today: "They have never been a 13-year-old BOY. It's a very sensitive age for a BOY. I didn't think that my colleagues, some of them, quite understood."

Presumably, Ginsburg's colleagues understand what it's like to be 13 years old, and for that matter a 13-year-old boy, so any influence that Ginsburg had in the Safford case likely derived from her perspective on being female. That is not an indictment of Ginsburg. It is a criticism of any judge whose vote in a Fourth Amendment case depends on the sex of the person being searched.

[Gantz]

My perspective is similar to Lawrence's but reaches a separate conclusion:

A boy in a parallel situation would be significantly less likely to take or be able to take such a case to the Supreme Court. There would be a social stigma for the hypothetical boy to deal with-- society is less sympathetic to the body image issues of pubescent boys. If one wants to side with the girl, one must oppose the stigma that would face the hypothetical boy. Do you oppose the stigma?

[sk]

I think some of these comments miss the point of Ginsberg's statements; even had it been a boy, I think she would have advocated the same result. The point is that the other justices were comparing their own experiences changing for gym to a strip search in front of school administrators.

It sounds like Breyer et al. were looking fondly back on their experiences in school, but their perspectives are likely not indicative of how all children feel about the same situation. Perhaps Breyer felt just fine about changing for gym, but how would he have felt if he was overweight, underweight, picked on, etc.? Moreover there is a big difference between some other child sticking something in his underwear (which is, by the way, a really odd comment) and being asked by someone in a superior position to shake out your underwear.

I think the point is that you can't judge how every 13 year old would feel in that situation based on your own positive experiences when such experiences are not universal.

[Violet Petran]

Of course the presence of a female justice has an impact on the opinion in cases like this. It is clear from the opinions of the other (male) justices that there is an inability to empathize with the humiliation associated with being a young female and getting stripped searched...the men just did not have to deal with this type of insecurity when they were younger. Ginsberg is a great member of the Supreme Court not just because she is female but because she does a better job of explaining the situation- not just putting it in the lexicon of her own experiences like many of the other justices are prone to doing.

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