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National Review Online: Strip-searching And Empathy

Stuart Taylor on Strip-Searching and Empathy [Ed Whelan]

As usual, Stuart Taylor has keen insights on last Thursday's ruling in Safford United School District v. Redding, including on the emptiness of President Obama's "empathy" standard and the unfairness of the Stevens/Ginsburg position in dissent:

Stevens argued, in an opinion joined by Ginsburg, that the assistant principal should be liable to pay damages for his "outrageous conduct." He did not deny that many federal appellate judges had suggested that such searches were lawful. Rather, Stevens (and Ginsburg) declared that "the clarity of a well-established right should not depend on whether jurists have misread our precedents."

Think about that. How would you like to be a school official living under the Stevens-Ginsburg view of the law? You could end up losing a chunk of your life's savings for ordering what several federal appellate judges had previously held to be a legal search. Judges, of course, enjoy absolute immunity; the Supreme Court has made sure of that. But under the law according to Stevens and Ginsburg, it could be open season on any school official who relies on prior judicial rulings that the Supreme Court ends up repudiating.

This has me wondering how a judge attuned to the "empathy" that Obama seeks should approach the many cases pitting real people against other real people. Empathy for Savana argues for requiring the assistant principal to compensate her. Empathy for the assistant principal — "whose motive throughout was to eliminate drugs from his school and protect students," Souter noted — argues the contrary. And most such officials are hardly rolling in money. What's an empathetic judge supposed to do?