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.

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as…

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as ‘activist,’ then the one Taylor proposes — that the role of a court is to implement what it sees as the will of the public when the political branches fail to — surely qualifies."

To the contrary, a decision reversing Ricci would not stretch the meaning of the Constitution in the slightest. Rather, as my column stated, it would "vindicate the central thrust of the 1964 Civil Rights Act and the Constitution’s equal protection clause."

The following story originally appeared in the September 2005 issue of The Atlantic during another time of flux for the Supreme Court.

I’ve been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.

That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court’s marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that — places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they’re not like you and me.

It’s not every case in which the Bush administration is aligned with the World Court, human-rights groups, the American Bar Association, the European Union, other death-penalty opponents, and a vicious murderer now sitting on death row against Bush’s home state of Texas and tough-on-crime groups.

Nor is it every case in which Bush-appointed Chief Justice John Roberts and his four most conservative colleagues (plus liberal John Paul Stevens) rebuff the president for making an excessive claim of presidential power.

That’s what happened on March 25, in Medellin v. Texas, a complex but fascinating case that has become a global cause celebre. The Supreme Court ruled 6-3 that neither the World Court nor the president could require Texas courts to give the murderer, a Mexican national named Jose Ernesto Medellin, a new hearing on whether he was denied a fair trial by the state’s violation of his right under a multilateral consular treaty to seek help from the Mexican consulate after his arrest. Texas courts have refused because Medellin’s attorney did not raise the state’s violation of the Vienna Convention on Consular Relations in his trial or initial appeal.

The Court issued two important rulings: 1) U.S. courts may not use vague treaty provisions to override state or federal laws without explicit authorization from Congress, a point on which Bush agreed; and 2) The president lacks the sweeping and unprecedented power that he claimed unilaterally to require judicial enforcement of such vague treaty provisions.

The Court was right on both points, in my view. But the decision, widely denounced by internationalists, does carry heavy costs. As Roberts acknowledged, it may hurt relations with foreign governments, may be seen as undermining the nation’s "commitment to international law," and may make it harder for Americans arrested abroad to get access to U.S. consular officials.