Leading Supreme Court Litigator on Disappointing Outcome of Strip-Search Case

April 10, 2012

by Jeremy Leaming

Tom Goldstein has argued more than 20 cases before the U.S. Supreme Court, and in a recent interview with “The Daily Show with Jon Stewart,” delved into one of the cases he has argued, where the high court’s conservative majority rejected a constitutional challenge to jailhouse strip-searches.

About 4-and-half minutes into part one of the interviews, Jon Stewart asked Goldstein, publisher of SCOTUSblog, about the April 2 opinion upholding broad uses of strip-searches. Stewart said the 5-4 opinion in Florence v. Board of Chosen Freeholders seemed to advance an “incredibly extreme” measure of police power.

In part two, Goldstein continued that the justices on the right are “really worried about jail security.” In telling the story of Albert Florence – he was arrested for minor fines he had already paid, and then strip searched at two different New Jersey jails – Goldstein said he found the circumstances a “little hardcore,” and that “I wish we would have won, but we didn’t.”

Goldstein noted that the high court’s Florence decision does not mean that jails have to use strip-searches. But he added, “I think when the jails are allowed to do it, I think they’re pretty much going to do it.” He also lamented the fact that he was unable to persuade the justices that typically people “don’t drive around on the street hoping to get picked up so that they can smuggle something into the jail.”

Stewart asked how conservatives who bemoan TSA airport screening as “an absolute violation of people’s privacy,” could not also deplore sweeping uses of jailhouse strip searches. Goldstein responded that they “go to airports, they don’t get arrested.”

The majority of the first part of interview with Stewart focused on the Supreme Court’s consideration of the Obama administration’s health care reform law, the Affordable Care Act. Sounding almost as certain as CNN’s Jeffrey Toobin, Goldstein said the administration is likely to have a disappointing June. For analysis of oral arguments in HHS v. Florida, see the ACSblog symposium.

For more on the Florence case, see Professor Angela J. Davis’ ACSblog guest post and this podcast produced by ACS and the National Constitution Center.