The consistently terrific Emily Bazelon has a very interesting interview with Supreme Court Justice Ruth Bader Ginsburg in next Sunday's New York Times Magazine. This seemed worthy of more comment:
Q: What about the case this term involving the strip search, in school, of 13-year-old Savana Redding? Justice Souter’s majority opinion, finding that the strip search was unconstitutional, is very different from what I expected after oral argument, when some of the men on the court didn’t seem to see the seriousness here. Is that an example of a case when having a woman as part of the conversation was important?
JUSTICE GINSBURG: I think it makes people stop and think, Maybe a 13-year-old girl is different from a 13-year-old boy in terms of how humiliating it is to be seen undressed. I think many of [the male justices] first thought of their own reaction. It came out in various questions. You change your clothes in the gym, what’s the big deal?
Ginsburg has made this point before, and maybe it was her reaction to jokes at the oral argument which assured the Court's eventual 8-1 decision. But the whole phrasing of Bazelon's question seems off. Bazelon is implying--as did many others at the time--that joking about something means you do not take it seriously. This is a very limited way of looking at how human beings behave. There are plenty of reasons to abstain from making a joke--it is not funny, it is hurtful, etc.--but the seriousness of the subject is not automatically one of them. In other words, just because Justice Breyer makes light of his experiences in gym class, it does not follow that he has little sympathy for Savana Redding. The Court's admirable ruling proves this clearly.