June 26, 2009

Strip constructionist in the briefs

Justice David Souter (and seven others):
[T]he nurse ... asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree.
That sounds an awful lot like a strip search to me, but apparently not to Justice Clarence Thomas:
[fn 2.] Like the dissent below, "I would reserve the term 'strip search' for a search that required its subject to fully disrobe in view of officials." The distinction between a strip search and the search at issue in this case may be slight, but it is a distinction that the law has drawn. See, e.g., Sandin v. Conner ("The officer subjected Conner to a strip search, complete with inspection of the rectal area").
Sandin is not exactly the best example, as a body cavity search involves something beyond a strip search. Nor might an "inspection of the rectal area" require "its subject to fully disrobe."

It could easily be facilitated even through means of the actions described by Souter et al, which Thomas argues wasn't a strip search.

It seems to me that Justice Thomas, presumably never having been a purchasing agent, misapprehends the expression "complete with." It isn't a confirmation of some definitionally existing requirements, it's a request for something in addition to those requirements.

When I used to buy steel pipe, my purchase orders would often read "pipe, complete with chemical and mechanical test reports," but never "pipe, complete with being round and a hole in the middle."

Furthermore, Thomas would hold that the less-than-strip search was not a violation of 13-year-old Savana's constitutional rights, in large part because 19th-century public school teachers were permitted to take students out back and flog them for speaking out of turn.

Clearly, the wrong guy is retiring from the Supreme Court.

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