The other day I suggested in passing that the idea that empathy for particular litigants should affect judicial decisions gets much of what plausibility it has from methods of constitutional interpretation that encourage judges to make judgments that are legislative in character. I said that it was possible that figuring out how to balance a school’s need for security and a girl’s need not to be subject to humiliating searches struck me was just such a judgment.
A blogger for The Economist politely disagrees with me, at least with respect to this example.
So imagine now that you are a judge. The constitution requires that if it is unreasonable to strip search teenage girls as part of an aggressive effort to keep drugs out of schools, you rule to bar this policy, but that otherwise you permit it. . . . [T]here is no way for you to sincerely obey the constitution’s command without contemplating questions like “What sorts of burdens do we impose on girls who are subjected to such treatment, as opposed to less intrusive searches?” Or on the other hand: “How severe is the drug problem, and how likely is this aggressive policy to significantly ameliorate it?”
I think that the blogger goes wrong in the second sentence I just quoted. It is not at all clear that the Constitution requires anything of the sort, and for most of the history of American public education — and even more of the history of the republic — it would have been considered obvious that it did not. Maintaining that position would have kept judges from having to make quite so many authoritative statements about the psychology of teenage girls.