Lloyd Constantine

"Watch out for Kennedy"

A crucial vote in the Obamacare case betrays an unsettling view of liberty

Supreme Court Justice Anthony Kennedy, writing earlier this month for a sharply divided 5-4 majority, explained why strip-searching people arrested for allegedly committing minor, nonviolent infractions, does not violate their Fourth Amendment right to be free of unreasonable searches. Alleged infractions, that is, which include a noisy muffler, an inoperable headlight and an unleashed dog.

To fully appreciate the gravity and irony of the Supreme Court's interpretation of a fundamental constitutional right, we must go back a month to the arguments over the constitutionality of the Affordable Care Act, aka "Obamacare."

The court devoted three days of oral argument, the most in more than 50 years, to challenges mounted by 26 states against the President's signature health care initiative and specifically the law's "individual mandate." That central provision requires almost every American to have or purchase health insurance, or be monetarily penalized.

The rationale for the mandate is that the uninsured frequently utilize free emergency rooms and other public hospital care that is subsidized in the increased prices for health insurance paid by policyholders, at an average of $1,000 per year.

Advocates on both sides of the argument focused squarely, and at times in a transparently pandering fashion, at the very same Justice Kennedy who legalized suspicionless strip searches. Kennedy is widely perceived as the ideologically divided court's "swing vote" poised between the conservative bloc of Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito and the liberal wing of Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Court watchers predict that the court's conservatives will vote to nullify the individual mandate and the liberals vote to uphold it as a proper exercise of the Constitution's power to regulate commerce.

Justice Kennedy, they say, could effectively determine the fate of the law. The best way to win over Kennedy is to invoke "liberty," argue that your position protects it and appeal to his self-styled posture as its most ardent guardian on the court.

In one famous passage from a Kennedy opinion in a 1992 case upholding yet restricting abortion rights, he wrote, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Justice Scalia later mocked this as the "famed sweet-mystery-of-life passage."

As the health care arguments proceeded, the focus on Kennedy intensified. Adam Liptak, The New York Times' Supreme Court specialist, reported this in a column titled "In Health Case, Appeals to a Justice's Idea of Liberty." He documented the manner in which both the challengers and defenders of the mandate invoked liberty in a creative, even tortured effort to gain Justice Kennedy's presumed decisive vote.

If the key to Anthony Kennedy's heart, mind and vote is his conception of liberty, then the decision in the strip-search case, Florence vs. Board of Chosen Freeholders, suggests that the Obamacare litigants were barking up the wrong tree.

In 2005, Albert Florence and his wife, who are African-Americans, were stopped by a trooper in New Jersey, a state with a well-documented history of racial profiling by police. With no suspicion that Florence possessed weapons, drugs or any contraband, the trooper ran his name through the state's computer base, revealing he was in arrears in paying an old fine.

As Justice Kennedy noted, the state's record was wrong, as the fine had been fully paid. But before this error was detected, Florence was arrested, placed within the general population of two county jails and each time strip-searched, replete with "squat, spread, cough and lift your testicles."

Justice Alito, who voted with Kennedy in the majority, described strip searches as "undoubtedly humiliating and deeply offensive." Chief Justice Roberts, also joining the majority, signaled discomfort with his position by writing a short concurring opinion suggesting that in the future, the Court might carve out some exceptions "to ensure that we not embarrass the future."

Justice Kennedy reasoned that strip searches could proceed without any reasonable cause to suspect weapons, drugs or contraband. His ruling applies even when an arrest is for the most technical, non-violent infractions, including an inaudible bicycle bell. Strip searches often occur in such instances, as pointed out by Justice Breyer in his dissent.

Kennedy's justification for the new standard, that overrules contrary decisions in seven United States Courts of Appeal, is that jails are nasty places. The states, he opined, have an overwhelming interest in making sure that anyone entering the general jail population not conceal weapons, contraband, gang tattoos or lice.

Confronted with the record that there was no reasonable cause to suspect any of that and arrests often occur for something like unpaid parking tickets, Justice Kennedy offered the cases of Timothy McVeigh, the Oklahoma City bomber; and New York City serial killer Joel Rifkin, both apprehended for driving unlicensed vehicles.

Yet Justice Kennedy's anecdotal scare tactic was belied by the record before the court. That included a study done in Orange County, where contraband was uncovered in just one of 23,000 strip searches permitted under the standard announced by Justice Kennedy. And in Nassau County, the record of 75,000 strip searches did not reveal a speck of contraband that would not have been detected by a simple "pat down" or by utilizing the "reasonable cause" standard.

Even the practice of the Federal Bureau of Prisons was unpersuasive to Justice Kennedy. The feds don't strip search those accused of non-felony offenses or of civil contempt. Nor do they segregate them from the general prison population.

The Obamacare litigants awaiting the Supreme Court's ruling may find their decisive vote with Justice Kennedy. My own analysis of the oral arguments before the court, however, makes it clear that Chief Justice Roberts actually holds the most critical vote of all.

In any case, the nation seeking a guardian of its liberty on the high court would be wise to look elsewhere.

It should hope that the court not wait for the embarrassment of the future to revisit this horrendous strip search ruling, which infringes upon the liberty of all Americans.

Lloyd Constantine is a Manhattan lawyer. He has argued before the Supreme Court and testified in the Senate's Supreme Court nomination hearings. He is the author of several books, including "Priceless," about a historic antitrust case involving Visa and MasterCard.