Souter Retirement

While many have speculated that Justice Stevens, age 89, would be the first Supreme Court retirement of Obama's term, those with most intimate knowledge of the Court have long said that Souter was disillusioned with D.C. and the Court and wanted to return to his quiet life in New Hampshire. According to the Times, this term will be Souter's last.

In 2007, Justice Stevens said that since Richard Nixon appointed Lewis Powell to the Court in 1971, "[e]very judge who’s been appointed...has been more conservative than his or her predecessor." Here's the list:

1971 Lewis Powell (Nixon) replaced Hugo Black (FDR)
1972 William Rehnquist (Nixon) replaced John Marshall Harlan II (Eisenhower)
1975 John Paul Stevens (Ford) replaced William O. Douglas (FDR)
1981 Sandra Day O'Connor (Reagan) replaced Potter Stewart (Eisenhower)
1986 Antonin Scalia (Reagan) replaced Warren Burger (Nixon)
1988 Anthony Kennedy (Reagan) replaced Lewis Powell (Nixon)
1990 David Souter (Bush I) replaced William Brennan (Eisenhower)
1991 Clarence Thomas (Bush I) replaced Thurgood Marshall (LBJ)
1993 Ruth Bader Ginsberg (Clinton) replaced Byron White (JFK)
1994 Stephen Breyer (Clinton) replaced Harry Blackmun (Nixon)
2005 John Roberts (Bush II) replaced William Rehnquist (Nixon)
2006 Samuel Alito (Bush II) replaced Sandra Day O'Connor (Reagan)

This pattern has moved the Court far, far to the right of where it was when Stevens first came to the Court 30+ years ago. Seven of the nine current justices were appointed by Republicans, including the Court's two most liberal members, Justice Stevens and Justice Souter. Even Clinton's two appointees were more conservative than their predecessors. For example, Justice Breyer, a liberal on the current Court, is far less liberal than his predecessor Justice Blackmun, a Nixon appointee. Perhaps the most dramatic shift to the right was when George H.W. Bush appointed arch-conservative Clarence Thomas to replace civil rights icon Thurgood Marshall.

In any event, Souter's retirement at a time when the Democrats control the Senate would give President Obama a chance to interrupt this longstanding rightward shift. But given the current state of the judiciary – in which even Democratic appointees tend largely to accept conservative judicial philosophies, the liberal "bench" isn't very deep. I hope Obama finds a replacement at least as liberal as Souter.

Two Advils

Where the War on Drugs has taken us:

Savana Redding still remembers the clothes she had on – black stretch pants with butterfly patches and a pink T-shirt – the day school officials here forced her to strip six years ago. She was 13 and in eighth grade. An assistant principal, enforcing the school's antidrug policies, suspended her for having brought prescription strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating.... Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court.

Apparently the reason the school came to suspect that Redding was carrying the dangerous drug ibuprofen was because a female friend falsely blamed Redding for giving her the drug. (As Redding put it, the friend "started being embarrassed by me because I was nerdy" so the friend decided to get Redding in trouble.) So what's a school to do? Strip search. Though as the Court of Appeals pointed out, there was no reason for the school to think that Redding had the ibuprofen "insider her undergarments, attached to her nude body, or anywhere else that a strip search would reveal."

The current Supreme Court has pretty much read the Fourth Amendment out of the Constitution. (It much prefers the Sixth and Second.) The Court also seems to lose its mind – and any pretense of constitutional principle – whenever it considers cases that involve school kids and drugs. (See e.g. Morse v. Frederick where the Court upheld a school decision to punish students who made a banner proclaiming "Bong Hits 4 Jesus" while they were at a public event off school grounds. No free speech for you, you DFHs.)

Judge Kim Wardlaw of the Circuit Court wrote about the Redding case, "It does not require a constitutional scholar to conclude that nude search of a 13-year-old child is an invasion of constitutional rights." Given the current Supreme Court, I'm afraid Judge Wardlaw may be wrong. I suspect the Supremes will rule for the school district.

I'm all for giving school officials some deference. But strip searching a 13-year-old to protect her from ibuprofen is Advil Madness.