This colloquy from Florence v. Freeholder illustrates nicely the difference between considering safety costs–deferring to the state, and exhibiting skepticism of individuals–and liberty costs.

JUSTICE ALITO: Would you say that regardless of the offense for which the person is arrested? There have been some stories in the news recently about cities that have taken to arresting people for traffic citations. Suppose someone is just arrested because they have a lot of tickets for being caught on speed cameras, let’s say. That person can be subjected to the searches that you are describing?

MR. PHILLIPS: Yes, Justice Alito. I think the basic principle we are asking for is that deference to the jails and — and to the administrators of the jails requires that this Court respect their judgment that you can’t make a distinction based on that specific individual; that whether somebody is a minor offender or a major offender, one, is never all that clear in the first place; and two, isn’t a basis on which to distinguish the risks that it poses to the

And this exchange with Justice Ginsburg about balancing rights:

JUSTICE

GINSBURG: Are there any — are there any constitutional limits, in your view? You say you didn’t attempt the kind of search that was done in Bell v. Wolfish. Is there any constitutional impediment to your doing so?

MR. PHILLIPS: I — I don’t believe that -my position would be no, there isn’t a constitutional impediment, but -JUSTICE

GINSBURG: So there’s no -MR.

PHILLIPS: The balance would tip in favor of the — of the institution under those circumstances. I do think — obviously, there is a limit between a manual physical body cavity search, and that it seems to me, yes, I think — that would — that would be a very different balance of the equation, and I — I suspect I would be very hard pressed to just -to convince five members of this Court that that’s the

Followed by a a funny:

JUSTICE SCALIA: You — you want us to write an opinion that applies only to squatting and coughing. Is that it?

MR. PHILLIPS: Well, you may want to write it slightly differently.

JUSTICE SCALIA: Yes.

(Laughter.)

Followed by a call for deference to the state:

MR. PHILLIPS: No, but what — but what I would really like is an opinion that recognizes that deference to the prison and to their judgment is what’s appropriate under these circumstances, and that extends all the way to the Bell v. Wolfish line.

 

There were further questions about the actual threat of contraband in prisons. In other words, is the state’s interest in strip-searching prisoners valid?

JUSTICE BREYER: Try the ABA. The ABA is minor offenses, not drugs, not violence, and there you have to have reasonable suspicion. Now, I’ve read through the briefs and I can’t find a lot of contrabanders that were caught in that category. In fact, my law clerk thinks it’s one out of 64,000 or less. So — so what is the justification for a rule to avoid reasonable suspicion in that category?

…

JUSTICE BREYER: It’s a conclusion, and we have a lot of practical experience because different States have different rules and San Francisco came in with I think the toughest on your side, for your side.I just say, looking through that, it’s very hard to find somebody who really was in this minor offender category, who really was found to have contraband. So what should I look at to show that my initial reaction from the quick reading is wrong?

…

MR. PHILLIPS: Well, I mean, I think first of all anybody who thinks that the problems of contraband are less serious today than they were in 1978 is — is ignoring reality.

…

JUSTICE SOTOMAYOR: I understand contraband is serious. But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits. The great cause today is that from corrupt correction officials.

Justice Kennedy was similarly surprised about the lack of evidence justifying the state’s interest, to which the United States argued that there are not studies on these types of things. This again raises the question about the role of expert analysis in constitutional law opinions.

JUSTICE KENNEDY: I understand most of the general proposition that your side is advancing, but I have to say, I was somewhat surprised at the evidence, the amount of contraband that was discovered and the amount of weapons that was discovered that is in the literature and citations was somewhat skimpy. I thought there would be a stronger showing than I found in the briefs.

MS. SAHARSKY: Well, there are not empirical studies of this type of information. Typically it arises when there are incidents at a facility and incident reports are written up. They are not published regularly. There is not some kind of laboratory study that you can do. The facilities have an incident that they try to deal with. Sometimes it makes the news. Those are the things that we reported. I would hate for the Court to think that there is not evidence of people who committed — minor offenders in the record bringing in very serious things into prisons jails.

I point you to footnote 15 in the government’s brief which talks about people being arrested for traffic offenses and smuggling pipes in body cavities. I’d point the Court to both experts in this case cited by Mr. Phillips. I’d point the Court to the record in Bull, the San Francisco case.

In response to a question to Justice Sotomayor, the United States likewise argues to give the state defernece, and not apply 20/20 hindsight. Justice Sotomayor remains dubious of the state’s interest here.

JUSTICE SOTOMAYOR: The issue has to be certainly some misdemeanor. Some people charged with misdemeanor crimes will try to smuggle things in. The issue is how many of them would not have been found on a reasonable suspicion standard. I think Justice Breyer said in the San Francisco study it appears only one.

MS. SAHARSKY: I think that that is a very hazardous thing for courts to do with 20/20 hindsight. You know, the Court could look back at individual offenders and might have information -JUSTICE

SOTOMAYOR: But we don’t have 20/20. We have how many years, 15 years since Bell where prisons have been applying the reasonable suspicion standard. And the most you could muster under that standard is one example of a case where someone has entered? At some point empirical evidence has to mean something in terms of us judging the question of reasonableness.

MS. SAHARSKY: I agree with you, but what I’m saying is that the individuals who are doing the searches at issue have very limited information about people. This is when you have people who are coming into the first — the system for the first time. They have had the most contact with the outside world. You have the least amount of information about them. In the Federal system you don’t know –

….

And the question before the Court, if I may, is whether there are reasons for a blanket rule that this Court should defer to, and I would say there are several.

Goldstein leads off his rebuttal by urging caution about deferring to the state:

I have three points to make. The first is that my friend from the United States says defer to the experts….