This is the second in our continuing series of posts examining important Supreme Court cases in which the Court is expected to rule sometime before its term ends later this month, as well as cases raising similar issues in which Supreme Court nominee Sonia Sotomayor has participated during her tenure as a judge on the Second Circuit.

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by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

The Fourth Amendment of our Constitution expressly gives every person in this country the right to be free from “unreasonable searches and seizures.” Sometime in the next few weeks, the Supreme Court will decide whether that fundamental guarantee was violated by public school officials who strip searched a 13-year-old girl — an 8th grade honor student with no disciplinary record — on the basis of an unsubstantiated tip from another student that the girl might be in possession of the headache remedy ibuprofen (commonly known as Nuprin or Advil). The precise legal question the Court will need to determine in Safford Unified School District v. Redding is whether, under the circumstances, school officials violated the young girl’s Fourth Amendment right not to be subjected to an “unreasonable” search when they had her strip to her underwear and pull her bra and underpants out and shake them in front of school employees searching for a headache pill. Legitimate and important competing interests bear on that decision — the interest of school officials in maintaining the safety of all students in their care, as well as the privacy and human dignity interests of the young girl who was subjected to the strip search (which turned up nothing).

As has been much discussed elsewhere (e.g., here by Dahlia Lithwick), questions by the Justices during oral argument revealed that they approached the Fourth Amendment issues at stake in this case from very different perspectives. The Court’s only female Justice, Ruth Bader Ginsburg, seemed appalled by the strip search, while some of her male colleagues appeared not to fathom the young girl’s embarrassment or why, from the girl’s perspective, what had happened to her was so humiliating.

Obviously, we don’t know how this case will turn out (although things were not looking good for the young girl after oral argument). Nor do we know how Supreme Court nominee Sonia Sotomayor would rule if she were on the Court right now. A former prosecutor, Judge Sotomayor has departed at times from her Second Circuit colleagues in a conservative, “law and order” direction. But our on-going research into Judge Sotomayor’s record has turned up dissents that she wrote in two different cases in which the Second Circuit upheld strip searches (in one by calling the search something else) that give us a good glimpse into her judicial philosophy and the manner in which she goes about weighing the competing interests at stake in Fourth Amendment cases such as the one the Supreme Court is grappling with now.

N.G. and S.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004), was a lawsuit brought by the parents of two girls, ages 13 and 14, who had been placed by the state in juvenile detention centers, one because she had violated a court order not to run away from home, and the other because she had violated a court order to attend school. Neither was accused or suspected of any crime, nor did officials have any individualized suspicion that either girl possessed weapons or other contraband. Nevertheless, upon admission to the centers, both girls were strip searched pursuant to the state’s “blanket strip search policy for all those admitted to juvenile detention centers,” and were again strip searched upon “re-admission” to the centers after having been taken out for such things as court hearings, even though they had remained in state custody the entire time. The parents contended that their daughters’ Fourth Amendment rights had been violated by these strip searches. The district court disagreed, and the parents appealed.

A three-judge panel of the Second Circuit, including Judge Sotomayor, heard the appeal. All three judges agreed that the strip searches after the girls’ initial admission into the detention centers were unconstitutional, but they split, 2-1, on the strip searches conducted upon initial entry. In an opinion authored by Judge Jon O. Newman and joined by Judge Richard Wesley, the court, while recognizing this was a close question, held that the state’s interests in protecting the children in the facilities from harm and possibly discovering signs of abuse of those brought into the centers outweighed the intrusion into the girls’ privacy.

Judge Sotomayor issued a strong and lengthy dissent that carefully weighed the interest of the state against the humiliation and embarrassment suffered by the young girls, who not only had been required to remove their clothes, but also to “lift their breasts and spread out folds of fat.” Judge Sotomayor noted that courts should be “especially wary of strip searches of children, since youth ‘is a time and condition of life when a person may be most susceptible to influence and to psychological damage.’” Reviewing precedent, Judge Sotomayor observed that, outside the prison setting, the court had “never found that a strip search in the absence of any individualized suspicion was reasonable,” and she criticized the majority for ignoring the limits that the court’s precedents had placed on a state’s authority to conduct strip searches. Citing the evidence that strip searches conducted pursuant to Connecticut’s blanket policy had rarely turned up any contraband or evidence of abuse that could not have been found through less invasive searches, Judge Sotomayor concluded that the government had failed to demonstrate that “the invasive strip searches bore a ‘close and substantial’ relationship to any governmental need” sufficient to justify “a highly degrading, intrusive strip search.” Accordingly, she would have held that “reasonable suspicion must be present to strip search a juvenile who is not alleged to have committed a crime.”

Judge Sotomayor’s obvious concerns about the importance of the privacy rights protected by the Fourth Amendment also appear to have informed her dissent in the very recent case of Kelsey v. County of Schoharie, 2009 WL 1424206 (2d Cir., May 22, 2009), brought by two adult males, one of whom had been arrested for violating a child support order and the other for driving while intoxicated. The men charged that, after their arrest, they had been required to take off all their clothes, including their underwear, and put on jail uniforms in full view of corrections officers, and asserted that these were unconstitutional strip searches. Although jail officials claimed that the purpose of what had occurred was not to search the men but merely to have them change into jail uniforms, and that the men could have stood behind half walls to do so, the men presented testimony from a guard that detainees were required to “stand in front of him and face him” as they changed clothes and “there is no option to disrobe in private.” Given the dispute of facts, the district court denied the jail officials’ motion for summary judgment on the grounds of qualified immunity, and they appealed.

In a 2-1 decision, the Second Circuit held that the challenged searches were not searches at all, but were “clothing exchanges,” and that the Fourth Amendment therefore had no bearing on the case. Judge Sotomayor dissented and would have none of the majority’s euphemism, stating that “the privacy interests protected by the Fourth Amendment do not become irrelevant merely because we use the nomenclature of ‘clothing exchange’ instead of ‘strip search.’” And while she recognized that jail officials do have an interest in maintaining institutional security that could require limiting the constitutional rights of pre-trial detainees, Judge Sotomayor also noted that in this case the officials claimed this was not the goal of the challenged practice and that, in any event, less intrusive searches (including pat-downs) could be used, and strip searches employed when individualized, reasonable suspicion warranted them.

Moreover, Judge Sotomayor explained that in the posture in which the case had come to the Court of Appeals, the court was required to view the evidence in the light most favorable to the plaintiffs, which meant accepting their assertion that persons arrested for misdemeanors had been “forced to expose their private parts to corrections officers and inmates without reasonable suspicion.” In light of those facts, Judge Sotomayor would have held that the Fourth Amendment was indeed implicated, and would have upheld the lower court’s denial of summary judgment to the defendants and sent the case back to the district court for trial. She also noted that if those arrested for misdemeanors had been allowed to change clothes without exposing themselves, she would have agreed with the majority “that Fourth Amendment interests would not be implicated and violated.”

Over at Slate, Emily Bazelon raises alarm about a case in which Judge Sotomayor reportedly convinced her colleagues (including Judge John Walker, Jr., a cousin and appointee of President George Herbert Walker Bush) to overturn a jury verdict that had found police misconduct. Whatever may or may not have happened in the judges’ private deliberations in that case, it is indeed possible that, given Judge Sotomayor’s experience as a prosecutor and record as a judge, she may, if confirmed, move the Supreme Court in a conservative direction in some areas of criminal law and procedure. But Judge Sotomayor’s dissents in the two strip search cases reveal she is neither reflexively pro-government nor pro-civil rights plaintiff. Rather, in these cases, she takes the textual protections of the Fourth Amendment seriously, pays attention to precedent, and recognizes and carefully weighs the competing interests at stake in determining whether government officials have overstepped their bounds in violating the personal privacy of individuals in their control or custody. That’s what a good judge should do.