Breyer noted that people have been detained and strip-searched for offenses as minor as driving with an inoperable headlight, having outstanding parking tickets, violating a dog leash law, and riding a bike without an audible bell. None of these people could have anticipated being arrested, he said, and none would likely have hidden weapons inside their body cavities.
But Kennedy said that given the number of total arrests each year — 13 million — it would be unworkable for correctional officials to exempt one class of prisoner from strip searches. Indeed, he added, even people detained for minor offenses can turn out to be "the most devious and dangerous criminals." He cited, for instance, the case of Timothy McVeigh, the Oklahoma City bomber, who was detained initially for driving without a license plate.
"The justices in the majority don't want to micromanage jails," Kerr says. "So they're saying if the people running the jails think they need to do this, they should be able to do this."
Bernard Harcourt, a law professor at the University of Chicago, however, called the decision "frightening ... the kind of logic that can turn a democracy into a police state" because it is premised on the notion of eliminating all risk at the expense of those who reasonably pose little risk.
In fact, at least 10 states outlaw routine strip searches of those arrested for minor charges, and the Federal Bureau of Prisons and the U.S. Marshals Service bar visual body cavity searches for those arrested on misdemeanor or civil contempt charges. "What the court did was to take a practice that was not universal and give it its constitutional imprimatur," says Harvard Law School professor Carol Steiker. The open question, she said, is whether states that have forbidden this practice will not move to permit blanket strip searches of those arrested for minor charges.
Two of the justices in Monday's majority wrote concurring opinions in an apparent effort to soften the tone of the ruling. Chief Justice John Roberts and Justice Samuel Alito said that there might be some cases in which strip searches are not justified because they are conducted on prisoners who are not put in with other prisoners.