Pissing Contest

In a 1989 dissent, Supreme Court Justice Antonin Scalia called a Customs Service policy of subjecting employees to urine tests without suspicion an "immolation of privacy and human dignity in symbolic opposition to drug use." On April 15, Justice Ruth Bader Ginsburg said much the same thing about a 1990 Georgia law that required all candidates for state office to pass a drug test. But this time both she and Scalia were in the majority, and Chief Justice William H. Rehnquist was the sole dissenter.

"Georgia asserts no evidence of a drug problem among the state's elected officials," Ginsburg noted, and in any case drug use by these officials generally would not represent a threat to public safety. "The need revealed, in short, is symbolic….However well-meant, the candidate drug test Georgia has devised diminishes personal privacy for a symbol's sake. The Fourth Amendment shields society against that state action." Although the Supreme Court has upheld suspicionless drug tests in the past--for railway workers and student athletes as well as Customs Service employees--it has always required a special justification.

The 8-to-1 decision came three months after the Court heard arguments from Walker Chandler, one of three Libertarian Party candidates who challenged the 1990 law after they were forced to take drug tests in 1994. Lower courts had rejected the challenge. The Clinton administration--which has recommended urine tests for teenagers who want driver's licenses--filed a brief in support of the law.