Not very much, according to Justice Kennedy. I couldn’t help thinking about the Affordable Care Act cases when reading his opinion for the Court in Florence v. Burlington County, handed down Monday. The Court ruled that the Fourth Amendment does not forbid law enforcement from strip searching arrestees even if there is no reason to suspect that they possess contraband, carry disease, or could be violent. And remember — this is just pursuant to arrest: they obviously can be innocent of the crime charged, as was the petitioner here.

Any arrestee can be strip-searched for any reason, or for no reason at all. (Roberts and Alito sensibly warned that they could revisit these holdings, which Kennedy seems to have resisted and which Justice Thomas seems to have rejected). These searches, explains Justice Breyer in dissent, involve:

a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must, in addition, squat to expose the vagina.

Thes searches include people arrested for outstanding parking tickets, a violator of the dog leash law, women in their menstrual periods, and victims of sexual violence.

Why? Because Courts can’t run jails:

This case turns in part on the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific limitations and restrictions sought by those who challenge the visual search procedures at issue….

The difficulties of operating a detention center must not be underestimated by the courts…Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.

So the Court will allow these incredibly invasive searches without any probable cause on the part of police because it cannot run a detention center. It must defer to local police because it simply lacks the expertise to do anything else.

One might imagine, then, that the Court would pause before disrupting Congress from writing a lengthy and extremely complex health care bill affecting one-sixth of American economy. The Fourth Amendment commands the Court to supervise “searches and seizures,” but the Constitution does not require the Court to police these sorts of complex socio-economic judgments. Health care requires perhaps even more expertise than law enforcement. If the Court can’t write rules for local jails, surely it can’t write rules for the health care system. Right?


[Cross-posted at The Reality-Based Community]

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Jonathan Zasloff is Professor of Law at the UCLA School of Law.