A Stitch in Haste

As I was drafting my previous post critiquing the ruling upholding New York City's random, suspicionless search program at subway entrances, I was reluctant at first to invoke the dark legacy of Korematsu v. U.S., 323 U.S. 214 (1944), in which the Supreme Court upheld the internment of American citizens of Japanese ancestry on the grounds that courts should abdicate all responsibility for reviewing policies where the government interest is "national security."

Well, it turns out that I wasn't the only blogger willing to go that far:

If such decisions are left solely to the other branches of government, then what's the role of the courts in applying the Fourth Amendment? Is there much of a role left? The same kind of arguments have often been made in support of government policies. Consider the arguments made when the Supreme Court upheld the Japanese Internment in WWII in Korematsu...

[Korematsu] was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures ... and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.

In Hirabayashi v. United States, 320 U.S. 81 (1943), the Supreme Court stated: "[I]t is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs."

Under [this] argument, the Fourth Amendment wouldn't play much of a limiting role on what law enforcement officials can do. We should rely on the political process. If people don't like it, then kick the policymakers out of office. [Internal quotations omitted.]

My point exactly. There is no other line of Fourth Amendment jurisprudence, indeed no other branch of constitutional law, where courts show absolute deference to the other branches of government. (There are certain types of cases that courts won't hear — so-called "political questions" — but that's not the same as hearing a case and then upholding a law based on an absolute deference to policy makers.)

As I blogged previously, there is a robust collection of cases concerning random, suspicionless search programs, and every single one, even where the search program was ultimately deemed constitutional, makes clear that there is to be, not absolute deference, but in fact some form of heightened scrutiny, whether in the form of a balancing test or some other methodology. Probable cause is not to be waived casually, and certainly not blindly.

The MTA, the NYPD and Mayor Bloomberg have been quite successful in playing down the fact that this search policy is unprecedented in America, and that any search program even remotely similar to it has been struck down. Judge Berman's decision is a limp-wristed kowtow that is far closer to the judicial cowardice of Korematsu than to current Fourth Amendment jurisprudence.

It is, in short, embarrassing. It is also, in short, wrong.

More thoughts at Concurring Opinions.