The 9th Circuit ruled in favor of the student, noting that

Common sense informs us that directing a 13-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen … was excessively intrusive.

Imagine that, school officials demonstrating a lack of common sense when drugs are involved.

This case is a perfect example of why zero-tolerance is such a foolish concept. School officials strip-searched a 13 year old girl, not for a gun, not for a knife, not for heroin, but for the equivalent of 1 Advil Extra Strength Caplet. In the U.S. we now have schools where teachers are afraid to give a crying student a hug, for fear of a sexual harassment claim, but the administrators can force them to strip to their undies and reveal their privates to be sure they don’t have aspirin.

That’s why this grant of certiorari is worrisome. If the Court had denied cert, the 9th Circuit’s ruling against the school would have stood. But the 9th has a bad track record of being overruled by the Supreme Court, and the Supremes have demonstrated little concern for individual rights within the confluence of students and drugs, as evidenced by their panicky ruling in the “Bong Hits 4 Jesus” case.

The fate of America’s teenagers now lie in the hands of a Supreme Court that has apparently taken Helen Lovejoy’s famous catchphrase to heart. I have three pre-teen daughters, and I’m worried.

[Note: This is my last guest-post. It's been fun. Thanks, Ed! And thanks to all the birfers and the loyal Dispatchers who participated in the smackdown.]

Report: Ice Age to blast Earth
Glacial era predicted to freeze planet for next 100,000 years

Wait, wait, that’s not the wacky part. Here’s the wacky part:

Pravda, Russia’s online newspaper, claims evidence shows the warm, 12,000-year Holocene period will soon end, and the planet will experience a glacial age for the next 100,000 years.

That’s right. The WND–a religious right organization–is so eager to bash their domestic political opponents that they’ll even accept a report from Pravda. Granted, it’s no longer a Soviet mouthpiece, but I gew up in the Cold War, so to hear the nutcase righties quoting Pravda is truly a trip into the twilight zone.

Of course with temperatures here in southern Michigan hitting -17 last night, I am–for the first and probably only time ever–tempted to believe both Pravda and the WND.

In response to other cases that have been tossed for lack of standing, Berg has also filed a suit in the name of a member of the armed services.

The new case is Hollister vs. Barry Soetoro a/k/a Obama filed in the U.S. District Court for the District of Columbia, Docket # 08-02254 (JR). Hollister is a retired U.S. Air Force Colonel that can be recalled at any time by the President. His dilemma – is Obama a “qualified” President that he must take orders from or is he “not qualified” and therefore, he is required to legally disobey Obama’s orders?

Clever, but still doomed to fail because the basic problem with these suits is not lack of standing but lack of a factual case.

But if you haven’t seen Berg’s site, you should check it out. It always brightens my day by making me laugh. For example;

on January 16, 2009 again, we have a “Conference” before the U.S. Supreme Court in this case.

Well, yes, if “we have” is used in its loosest possible sense. The Supreme Court receives about 10,000 appeals per year, and accepts about 100 of them; that is, about 1%. How do they dispose of most of the other 9,900 cases? At conference, when the case name and number is read and everyone says “pass.” (OK, we don’t actually know exactly how their conferences work, because they operate behind closed doors. But it’s logical to assume that most of the cases receive no more than a few seconds of consideration.) So all cases are conferenced, which Berg knows. So when he says “We have a ‘Conference,” it sounds to me like he’s intentionally trying to mislead his supporters into thinking the Court is actually taking his case seriously.

And then there’s this.

We are working day & night to be prepared for the next proceeding: whether to appear in Court in Washington, D.C., or to prepare documents for Court, or to prepare Press Releases to keep people aware of our progress.

That’s right, folks, he’s not going to give up. The poor guy will be out there in the trenches day and night pounding out those press releases.

Berg is truly the git that keeps on giving.

The case is Chambers v. United States. From the syllabus of the opinion.

The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or “a violent felony,” 18 U. S. C. §924(e)(1), defined as a crime punishable by more than one year’s imprisonment that, inter alia, “involves conduct that presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii). At petitioner Chambers’ sentencing for being a felon in possession of a firearm, the Government sought ACCA’s 15-year mandatory prison term. Chambers disputed one of his prior convictions–failing to report for weekend confinement–as falling outside the ACCA definition of “violent felony.” The District Court treated the failure to report as a form of what the relevant state statute calls “escape from [a] penal institution,” and held that it qualified as a “violent felony” under ACCA. The Seventh Circuit agreed.

Held: Illinois’ crime of failure to report for penal confinement falls outside the scope of ACCA’s “violent felony” definition. …

Failure to report is a separate crime from escape. Its underlying behavior differs from the more aggressive behavior underlying escape, and it is listed separately in the statute’s title and body and is of a different felony class than escape.

Hear, hear! This case is, at its foundation, about over-reaching executive power that is wholly disinterested in due process and civil liberties. Even the conservatives on this Court were not convinced by the conflation of what is essentially a crime of “inaction” (as Breyer puts it in the opinion) and a crime of action, and plausibly violent action. The decision was 9-0 (with 7 joining the opinion and Alito and Scalia concurring); a pretty clear sign that the federal authorities should have known better from the start.

I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards.

Unfortunately, Obama doesn’t get it. If prosecuting people for their crimes was “looking backward,” there’d be no need to do it. Why did we prosecute poor Slobodan Miloscevic? He was out of power after all, so why didn’t we just “look forward?”

Looking forward, I see the prospect of future presidents thinking they can commit any crimes they want without fearing retribution. That’s a pretty good argument for prosecuting high-level Bush officials (I’m looking at you, Don R.), if not Bush himself.

It’s likely that Obama recognizes that a Republican backlash could jeopardize his domestic policy program. It probably would, but what, really, is the higher priority for America: 10% renewable energy by the end of his term, or constraining presidents from committing war crimes?

Harvard Law prof Charles Fried makes a stunningly inapt (and inept) defense of the no investigation policy.

But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf…

Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.

So Fried believes a thief who murders his victim is worse than people who abuse the public trust, shred the Constitution, imprison innocent people without trial, and torture and kill other innocent people? That’s a strange position for a guy who normally takes a deontological position, arguing that some actions are wrong in themselves, regardless of their purposes or consequences.

And his argument that our “historical memory of them” is sufficient response is pathetically naive. Will our historical memory serve as a sufficient threat to prevent future presidential crimes? Call me cynical, but I’ll lay odds against it.

Obama inadvertantly signals that it won’t, saying;
I do want them looking over their shoulder. Unless we’re really just sick and tired of these things called “popular sovereignty” and “the rule of law” and just want to take the leash off those who govern us.

Today on NPR, Fried also offered the argument that a prosecution would open the door to frivolous persecutions of future Democratic presidents by angry and vengeful Republicans. Doubtless it would, but that’s just why Obama should pursue a very carefully targeted investigation that pursues only the most serious crimes. In contrast, any Republican investigation of, say, minor campaign finance violations, would look petty and spiteful. For a guy who argues political memory is the solution, he doesn’t seem to have much faith in the power of political disapproval to discipline politicians.

The growth of presidential power throughout the last century is frightening, and has radically transformed our political system away from the truly republican one envisioned by the founders to something that is increasingly close to a presidential system absent any real checks and balances. We tend to overlook this as long as one of our own is in power, but power is power and it tends to corrupt regardless of the party label of the one who wields it. Obama may have run on a platform of “change,” but day by day that slogan is ringing ever more hollow.

[As an aside, I find it rather silly that the media always brings on law professors, like Fried, to talk about topics like this, which are inherently more political than legal. In my experience, law profs tend to be strong on, surprise surprise, law, but much weaker on having a solid understanding of politics in general. The two are not--and are absolutely not supposed to be--synonymous, but you wouldn't know that from watching the American media. Consequently, we tend not to get good analysis about what either decision would really mean for the future of the American political system writ large.]