The chief justice’s concurring opinion in the strip search case, only three paragraphs long, is interesting for a reason beyond what it might suggest about intramural stress. Here is the final paragraph:
“The court makes a persuasive case for the general applicability of the rule it announces. The court is nonetheless wise to leave open the possibility of exceptions, to ensure that we not ‘embarrass the future.’ ”
“Embarrass the future”? The quote, from a 1944 opinion by Justice Felix Frankfurter in a tax case, is usually offered to mean that the court shouldn’t encumber itself by declaring solutions to problems that have yet to emerge. Maybe that’s all the chief justice meant. But John Roberts is both a careful prose stylist and a man acutely conscious of his and the court’s place in history. There are so many other ways of expressing a minimalist impulse than this unconventional use of the word “embarrass” that I have to wonder whether he didn’t have in mind the prospect of institutional embarrassment, and not only in the case at hand.