The Supreme Court’s decision on Thursday faulting school officials’ intrusive semi-strip search of a 13-year-old Arizona girl suspected of hiding drugs that were forbidden in school, but not very dangerous, has generated spirited commentaries. See, for example, Dahlia Lithwick‘s in Slate, suggesting that Justices Ruth Bader Ginsburg and John Paul Stevens "turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser."

I dwell here on fairly obscure aspects of the case. They indicate that school officials will need to buy lots of insurance if the views of Ginsburg and Stevens on the question of liability ever command a majority. They also illustrate the limitations of President Obama‘s "empathy" standard for choosing judges, and suggest a possible question for his Supreme Court nominee.

First, the basics: Acting on a tip from another student that Savana Redding might be hiding prescription-strength ibuprofen pills (and over-the-counter naproxen), school officials told her to strip in front of two women down to her bra and underpants and pull them out, thus exposing her breasts and pelvic area to some extent. No drugs were found. Savana’s mother sued the officials and the school district for invading her privacy and humiliating her in violation of her Fourth Amendment rights.

In what may turn out to be retiring Justice David Souter‘s last majority opinion, all of his colleagues except Clarence Thomas agreed that this "strip search" (though not an earlier search of her backpack and jacket pockets) — looking for drugs that the officials had no reason to suspect would be very dangerous — was unconstitutional. But Souter and six other justices (including Thomas) also agreed that the assistant principal who ordered the search enjoyed "qualified immunity" from liability to pay damages. The reason was that the illegality of this kind of search had not been "clearly established law" at the time. On this point, Souter stressed that "numerous… well-reasoned" opinions and dissents by federal appellate judges had held or suggested that similar searches of students were constitutional under a key 1985 Supreme Court precedent.

Souter’s opinion in Safford Unified School District v. Redding seems reasonable to me. Not so the partial dissents by Justices Stevens and Ginsburg.

Stevens argued, in an opinion joined by Ginsburg, that the assistant principal should be liable to pay damages for his "outrageous conduct." He did not deny that many federal appellate judges had suggested that such searches were lawful. Rather, Stevens (and Ginsburg) declared that "the clarity of a well-established right should not depend on whether jurists have misread our precedents."

Think about that. How would you like to be a school official living under the Stevens-Ginsburg view of the law? You could end up losing a chunk of your life’s savings for ordering what several federal appellate judges had previously held to be a legal search. Judges, of course, enjoy absolute immunity; the Supreme Court has made sure of that. But under the law according to Stevens and Ginsburg, it could be open season on any school official who relies on prior judicial rulings that the Supreme Court ends up repudiating.

This has me wondering how a judge attuned to the "empathy" that Obama seeks should approach the many cases pitting real people against other real people. Empathy for Savana argues for requiring the assistant principal to compensate her. Empathy for the assistant principal — "whose motive throughout was to eliminate drugs from his school and protect students," Souter noted — argues the contrary. And most such officials are hardly rolling in money. What’s an empathetic judge supposed to do?

The separate Ginsburg dissent alluded only obliquely to her apparent view that strip searching a 13-year-old girl is worse than strip searching a 13-year-old boy, as she implied in an interview with Joan Biskupic of USA Today several weeks ago that has won widespread applause. To illustrate why the court needs more women, Ginsburg complained to Biskupic that some of her male colleagues’ comments during the April 21 oral argument showed that they did not understand what a "sensitive age" 13 was for Savana because "they have never been a 13-year-old girl."

I agree that the court needs more women. I also agree that as a general rule, because of anatomical and perhaps other differences, it may well be more traumatic for 13-year-old girls — I have never been one, but have raised two — to strip in front of authority figures than for boys to do so.

But how relevant should such distinctions be to Fourth Amendment law? If some other case comes along in which school officials want to strip search a 13-year-old boy for ibuprofen pills, should they go ahead because boys are used to running around naked in locker rooms?

Memo to school officials: Don’t try it. But perhaps some senator should ask Judge Sonia Sotomayor at her Supreme Court confirmation hearing whether girls and women should enjoy broader constitutional protections than boys and men in such cases, and perhaps in others, too.