Subways, Searches, and Slippery Slopes

police-search.jpgThe gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.

I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I’ll attempt to clear up any confusion as to my positions and try to defend my turf.

1. I’m not a privacy absolutist. If I were, I wouldn’t even be speaking about whether the subway searches were effective or not, as it would be irrelevant.

2. I am not arguing that we’re on a slippery slope toward totalitarianism. I am arguing that the “show of force” that Jason extols is something that totalitarian societies do, and it has effects on shaping people’s attitudes and their sense of freedom. It has “expressive” content. My argument is not that we’re going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won’t necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government’s installing telescreens into people’s homes anytime soon, the subway search policy isn’t a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.

3. I did not invoke Korematsu to suggest that we’re on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn’t defer but should keep a very critical eye on the policies adopted by the government in times of crisis.

4. Dave writes: “What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant?” Well . . . yes. Justice Brandeis took it upon himself to research the issues when he wasn’t convinced with what the parties brought him. That’s what a good judge should do. In cases having an impact beyond just the particular parties, courts should have a responsibility to get it right. In other words, the court’s responsibility is not just to see which litigant plays the better game, which litigant performs the best, but to make the best decision under the law. If a court is skeptical of something and is unconvinced by the evidence, then the court can readily demand more of the parties or perhaps even call an independent expert of the court’s own choosing. But it seems silly for a court to say: “Well, even though the case affects millions of people, I’ll rule in favor of the party that performed the best — even though I don’t know that the outcome is right.”

5. I am not conflating the Fourth Amendment and the wisdom of the search policy. The Fourth Amendment requires a balancing — a determination of the reasonableness of the policy. This involves examining whether the policy is effective, whether alternatives are available, and so on. How can one balance the search policy against privacy if one doesn’t examine these issues?

6. I am not demanding that the government have to justify the search policy as the “least intrusive method necessary” or “the most effective strategy policy possible.” This grossly exaggerates my position. I do believe, however, that the Fourth Amendment requires that the searches have at least a reasonable degree of effectiveness. And if other equally or more effective strategies are available that don’t infringe upon liberties, then this should effect the calculus about whether the search policy is reasonable. I’m not demanding that NYC adopt the best strategy. When liberties are sacrificed, however, the strategy should at least have a level of effectiveness that outweighs the costs.

7. It is true that part of my argument deals with the general lack of wisdom of the search policy. I definitely make arguments about the policy’s wisdom (and the wisdom of certain general strategies in combating terrorism) that are independent of the Fourth Amendment analysis. The Fourth Amendment doesn’t require the best policy — and the subway searches are clearly not the best. But the Fourth Amendment requires a policy where the effectiveness outweighs the costs — and on this ground, I believe, the NYC subway search policy also fails.

Related Posts:

1. Solove, NYC Subway Searches Upheld: A Critique of the Court’s Decision

2. Mazzone, Subway Searches: A View from New York (critiquing Solove)

3. Hoffman, NYC Subway Searches: A Response to Dan (critiquing Solove)

4. Solove, Rational Security vs. Symbolic Security (responding to Hoffman and Mazzone)

5. Hoffman, Are Subway Searches Really the Top of a Slippery Slope to Korematsu (replying to Solove)

6. Mazzone, Democratic Searches and Seizures (replying to Solove)

UPDATE: Hanno Kaiser has some interesting arguments about the issue at Law & Society Weblog:

In the conclusions of law, the court writes:

Against the compelling government interest in preventing a terrorist attack, the Court has weighted the (relatively limited) level of intrusion imposed upon subway riders.

Borrowing language from economics, the court compares totals, i.e., a terrorist attack, with marginals, i.e., the intrusions imposed upon subway riders. The comparison is not between “preventing terrorist attacks” and “people’s privacy” (two totals), nor is it between “the increase in safety from the subway bag search program as challenged” and “the relatively minor intrusions imposed upon subway riders by the program” (two marginals). As between the two, only the latter is a reasonable approach to weighing competing interests, but be that as it may, comparing marginals to totals is simply not meaningful, because the totals will always win. The court’s faux balancing is merely a rhetorical gloss on a foregone conclusion.

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5 Responses

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  3. Secondary Screenings on the Subways

    There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

  4. Dave Hoffman says:


    Maybe it’s time to move some of this debate to the comments, lest we become pigeonholed as a blog about subways, wikipedia, subways, and what wikipedia thinks about subways.

    1. On the courts’ role. Justice Brandeis had lots of resources & time. District Courts don’t, and your suggestions that they have an obligation to hire independant experts would seem to a principle without clear limits for other types of civil litigation. This was a really big case, and the NY ACLU is a fantastic law office. Maybe the evidence just doesn’t exist.

    2. On the reasonableness CBA, you say: “the Fourth Amendment requires that the searches have at least a reasonable degree of effectiveness. And if other equally or more effective strategies are available that don’t infringe upon liberties, then this should effect the calculus about whether the search policy is reasonable. I’m not demanding that NYC adopt the best strategy. When liberties are sacrificed, however, the strategy should at least have a level of effectiveness that outweighs the costs.” A few questions. First, why are courts the best institutions to evaluate costs and benefits of law enforcement action, especially with respect to terrorism, of a low probability high magnitude type? Marbury isn’t an answer here, I think, that gets you very far. A question from a previous post: is it right to aggregate small individual privacy “costs” to form a social disutility function, and, if so, how can a court do this? How should a court measure the benefits? Do psychic benefits (feeling safer) count? Monetary benefits (more shopping in the city due to psychic benefits)? Potential lives saved * value of life? If you are really talking about the fourth amendment as a balancing test that the district courts ought to operationalize, we’re creating some tough work for law clerks. Finally, I’m still not clear that you’ve met me on the deference point, because, as I point out, the deference here isn’t like deference in the ordinary agency context. The court seems to say: “I did conduct a balance (in a rough and ready way), and the evidence presented by the litigants compels the conclusion that the privacy losses are outweighed by the law-enforcement gains.” What could it have done that would have made that answer acceptable to you? Show more work?

    3. On re-reading, you are right that you didn’t make the slippery slope argument. I mis-read you. Sorry! A few trackbackers did too, but that is life on the internet…

  5. I believe our dispute ultimately turns on an institutional competence debate. You, in a similar way to Orin Kerr, argue that legislatures (or, in NYC’s case, the executive) is the best rulemaker. I do not necessarily believe that courts are better, but I do believe strongly in multiple branches analyzing the issue and checking each other. I explain this argument in more detail in Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, 74 Fordham Law Review 747 (2005).

    The role of the courts isn’t to re-do the work of the legislature or executive. It is to scrutinize that work and ensure that laws are effective and competent enough to outweigh their costs in terms of liberties. Without this function, the courts won’t do all that much. I don’t believe that when constitutional rights are involved courts should be performing their function with just a quick glance-over or a uphold-unless-it-is-really-absurd test.

    My criticism of the court was that it seemed to begin with a bias in favor of the government; and it applied plenty of skepticism to the plaintiff’s evidence but not an equal amount to the goverment’s.

    I agree that courts are busy, but it is imperative that in today’s world of balancing, the courts do their job. It was easy for the formalist judge of a century ago to decide a case — there were no balancing determinations measuring the effectiveness of particular laws. Laws were constitutional or not regardless of their effectiveness. But balancing, the predominant method of constitutional adjudication today, changed all that. Now, facts about effectiveness matter. Courts have to engage more in the kinds of inquiries social scientists do. (This is, of course, a very impressionistic account of the history).

    So an older formalistic style of judicial reasoning might have been much easier, but that’s not what courts are tasked to do today. You’re right that courts are often not up to the task, but the answer is not to have them defer to the very decisionmakers that are under review.

    I have written more about this in my article, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 Iowa L. Rev. 941 (1999). In the conclusion, I wrote:

    Judicial balancing is a vast improvement in constitutional adjudication over late nineteenth century formalism. In its virtues, judicial balancing conceives of law as an instrument to achieve human purposes, not as an end unto itself; it remains deeply concerned with the consequences of laws; and it assesses each situation as it arises rather than categorically restricting the exercise of state power in the name of absolute rights. With its greater focus on empirical evidence in issues of constitutional interpretation, it brings law more in tune with contemporary science, social science, economics, and other fields of human knowledge.

    Judicial balancing, however, remains primitive in its analysis of facts. Too many instances of constitutional interpretation especially ones under a balancing approach fail to adequately explore and develop the facts. Judicial balancing often is not a detailed exploration into a problem, but an attempt by overworked judges to guess, hypothesize, and make policy from untested assumptions about the facts. While science and other fields advance by careful study of factual and empirical data, by constant experimentation and critical review, modern judicial review does not even begin to approach the task of fact finding with any degree of sophistication. All too often, judicial review is exercised as it was in Lochner, even in strict scrutiny cases, very little scrutiny actually goes on. Very often, the Court quickly strikes down a law without giving careful attention to the facts. The heart of the problem lies in a lack of methods and techniques of critical inquiry. This occurs not just in cases of deference, but in instances of heightened scrutiny as well. It is a problem that runs throughout judicial review.

    Liberal theorists of judicial review should turn to the practical problems of the adjudicatory process. Instead of ignoring the justifications for deference, liberal theorists should engage them by exploring the potentialities and possibilities of the judiciary and by charting a course of systematic change. In addition, Congress must also become involved in working on these reforms. Lack of time and resources severely hampers most judges, and many of the tools necessary to grapple with these constraints are in the hands of the Legislative Branch. The time is long overdue for Congress to look to the topic of refashioning the adjudicatory process so that it is more capable of dealing with the complex problems it will face in the twenty first century.

    The judiciary must also become actively involved in this endeavor. Although the Constitution is mostly silent on how cases ought to be tried, leaving much room for the judiciary to shape and alter the future of adjudication, fairly little has been done to reform the customs and techniques of adjudication. Change does not have to begin at the systemic level, as a massive all or nothing revamping of the entire structure of the judiciary. Meaningful change can occur quite rapidly if it is fostered in an attitude of pragmatic experimentalism. Individual judges can spearhead these efforts. Meaningful change does not require the unified action of the entire judiciary; it can begin with a small number of visionary and creative judges. For example, Justices Marshall, Cardozo, and Holmes each in their own way exerted a profound influence on the law, more than legions of other judges combined. Indeed, a single judge possesses the power to achieve lasting change — it takes only courage and creativity. Judge Learned Hand was among the first judges to hire law clerks. His idea was so bold and original that he initially experienced difficulty with finding clerks, and he even had to pay them out of his own pocket. It is this type of innovation and creativity that is necessary to achieve a pragmatic reconstruction of judicial review.

    The judiciary must take steps to transform itself so that it can engage in a thorough critical inquiry into the complex empirical issues surrounding decisions made by experts in the bureaucratic state. To make such an inquiry, judges do not have to become social scientists. Critical inquiry into factual and empirical judgments does not mean number crunching or pouring over reams of data. Rather, it is a process of intelligent inquiry into the facts. It is developing methods of evaluation, of testing data, and of interacting with experience.

    In short, my point is that today, we’re applying empirical, economic, and sociological methods to addressing legal questions. Constitutional adjudication, in the very balancing formulations of review, calls for factual and empirical analysis. And yet, courts seem trapped in the 19th century, with some modifications in the way they decide cases, but with remarkably little change. The answer isn’t deference. It’s to get into the 21st century . . . fast.