Just one thing emerged clearly after a busy and often confusing hour of Supreme Court argument Wednesday on the constitutionality of strip-searches in local jails: the outcome is not going to be a categorical rule, one way or the other, reports Lyle Denniston of ScotusBlog.com None of the three lawyers argued for that, and nowhere near a majority of the justices seemed prepared to rule flatly for or flatly against strip-searching of arrested individuals. But where five Justices might draw the line was entirely unpredictable after the hearing.
What might turn out to be decisive is that the justices discovered — to the surprise of some of them — that there was so little evidence that smuggling weapons or drugs into jails or prisons was actually a serious, documented problem. Several members of the Court pressed for “empirical evidence” of actual experience, but got in response only surmises, suggestions that it was fantasy not to appreciate that jails are by nature very dangerous places. The justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an “anything goes” policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation.