Another Reason to Miss O'Connor

An article in the August 4 issue of Workplace Substance Abuse Advisor (not available online) reminds us that departing Supreme Court Justice Sandra Day O'Connor was suspicious of suspicionless drug testing. Unlike Justice Antonin Scalia, who initially thought routinely forcing people to pee in a cup was an egregious invasion of privacy but later seemed to change his mind, O'Connor dissented from rulings approving public schools' testing of students' urine:

In the case of Vernonia School District v. Acton in 1995, she offered the following dissent. "For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment," Justice O'Connor wrote. "And we have allowed exceptions in recent years only where it has been clear that a suspicion-based regime would be ineffectual." She concluded that the facts in Vernonia, as well as Board of Education v. Earls in 2002, failed to warrant random testing….

Justice O'Connor's perception of the Fourth Amendment protection against search and seizure was a recurring theme in her opinions on drug testing. She railed against the majority's approval of "blanket" searches, which constituted random student drug tests, explained by the "misery loves company" theory that it is justified since all involved in the extracurricular activity are subject to the search. "Protection of privacy, not evenhandedness, was then and is now the touchstone of the Fourth Amendment," Justice O'Connor wrote in dissenting to the decision in Earls, which upheld random testing of students participating in extracurricular activities such as athletics, band, and the chess club.

The article, headlined "Drug Testing Advocates Welcome O'Connor's Departure," closes with the hope that John Roberts "will be open to tipping the constitutional balance in favor of safety and drug testing over the limited privacy interests of the individual." Since the advocates of testing won both of those cases, one wonders how much more the balance needs to be tipped. In any case, between her position on drug testing and her recent dissents in Gonzales v. Raich and Kelo v. New London, O'Connor is looking better and better to me every day.

[Thanks to the Drug Policy Foundation's Ethan Nadelmann for the tip.]