Conservatives Vs. Liberals On The Role Of A Judge: The Strip Search Case

The job of a Supreme Court justice is, in many respects, similar to that of a judge or umpire — or at least it should be. The reason that Democrats and Republicans have such enormous battles over judges is because conservatives and liberals have very different ideas of what the role of the “umpire” should be.

Conservatives, who believe that they can sell their ideas to the American people, want the “umpires” to call the game right down the middle. On the other hand, liberals want the “umpires” to give them favorable calls that will allow them to achieve victories in the court room that they can’t achieve in the legislative arena.

One case that will help show you the difference between how conservatives and liberals view the law is the “strip search ruling” (Doe v. Groody). In that case, Samuel Alito wrote in a dissent that the police did not overstep their authority by strip searching a ten year-old girl living with a suspected drug dealer.

Of course, liberals were horrified by this ruling. For example, here’s Daily Kos diarist Chumley on Alito’s decision:

“I’m the father of a 7-month old girl, and I will NOT live in an America where the government can force my daughter to strip and be searched, unclothed, at its whim.

I have no doubt that most Americans feel the same way.

Alito is a disgusting pervert who believes that innocent ten-year old girls should be forced to take off their clothes at the whim of the government.

I’m so godd*mned angry right now I could spit fire.”

Note that Chumley’s complaint here is not that Alito’s legal reasoning is unsound, it’s that he achieved the wrong result. Chumley doesn’t think 10 year old girls should ever be strip searched, ergo the judge should rule it to be illegal and “is a disgusting pervert” for not doing so.

That’s the liberal position.

Now, in order to understand the conservative position, you need look no further than Samuel Alito’s dissent, in which he wrote:

“I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face. Because the warrant in this case authorized the searches that are challenged – and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority – I would reverse.”

So Alito makes it clear that he does not like “the intrusive search of John Doe’s young daughter,” and yet he allows it. Why? Because the job of a judge is not to make rulings based on his personal likes and dislikes, it’s to decide what is permissible within the law. Since this strip search was permissible within the law in Alito’s opinion, he felt that it was not the place of the court to rule that that the strip search was improper.

This is why Alito will be such an excellent addition to the Supreme Court. It’s because he will set his personal feelings aside, narrowly interpret the law, and will “call it right down the middle.” If we had 9 men and women with exactly that same perspective on the Supreme Court, it would suit conservatives just fine.

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