Opinion: Strip searches and sexism

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Liberals and conservatives on the U.S. Supreme Court disagreed dramatically during the past term on everything from the regulation of ‘indecent’ broadcasting to employment discrimination to whether elected judges should recuse themselves from cases involving campaign benefactors.

A notable exception came in the 8-1 holding that an Arizona school had violated the 4th Amendment rights of a 13-year-old girl by subjecting her to a strip search (the dissenter was Clarence Thomas, taking his familiar role as outlier). The near-unanimity confounded publicly expressed fears by Justice Ruth Bader Ginsburg that the result might be affected by the fact that her eight male colleagues ‘have never been a 13-year-old girl.’

Ginsburg’s anxiety was understandable given the gender divide at oral arguments over whether removing your clothes is all that traumatic for a teenager. Ginsburg must have cringed ...

... when Justice Stephen Breyer said: ‘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.’

Breyer and most of the other male justices eventually concluded that the strip search of Savana Redding was ‘a major thing.’ But Justice David Souter’s majority opinion suggested that the majorness (as the kids say) of the issue may have turned not only on Savanna’s age but also on her gender. Souter approvingly quoted this passage from a 1985 decision: ‘Such a search [of a student] will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’ (My italics.)

Ginsburg herself cited this language in her partial dissent. (Unlike the majority, she would not have immunized the school officials from personal liability for the search). At first glance, that might seem logical. After all, the reference seems to echo Ginsburg’s observation that male justices ‘have never been a 13-year-old girl.’

But ordinarily Ginsburg, a pioneering women’s-rights lawyer, doesn’t emphasize supposed differences between male and female. Indeed, one of her best known opinions in the one striking down the Virginia Military Institute’s all-male admissions policy. In that 1996 case, Ginsburg, writing for the court, noted disapprovingly that a lower court that upheld the all-make policy concluded that coeducation would alter ‘at least these three aspects of VMI’s program: physical training, the absence of privacy, and the adversative approach.’ (Again, my italics.)

I’m not suggesting that Ginsburg’s positions in the VMI and strip-search cases are irreconcilable. In fact, in her VMI opinion, she concedes that physical differences between men and women ‘are enduring,’ though it’s not clear how far she would press that concept.

The notion that the Constitution should be interpreted in light of differences between men and women, or boys and girls, is more usually associated with ‘difference feminism’ than with the notion that equality means treating the sexes exactly the same. Ginsburg is ordinarily associated with the latter, and older, approach to feminism. But wouldn’t that view suggest that a 13-year old boy would be just as embarrassed by a strip search as a 13-year-old girl?