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.]

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  1. The Onion (which I can’t link to at work) has a funny piece about the ritual used for Justice O’Connor to “retire”.

  2. “And we have allowed exceptions in recent years only where it has been clear that a suspicion-based regime would be ineffectual.”

    The royal “we” in this quote from O’Connor is an indicator of why she was a problematic justice. She’s clearly referring to judicially-created exceptions here — but it is the job of the legislative + executive (through statutes or changing the constitution if statutes alone won’t do it) to allow for “exceptions” if the existing regime is “ineffectual.”

  3. “O’Connor is looking better and better to me every day.”

    And I’ll bet you think popular music from the 60’s & 70’s is so much better than today’s crap.

    Time has a way of making us forget all the dirt that came with the diamonds….

  4. I have a question for the Con Law types: is there always only one right answer to a Constitutional question?

    O’Connor and Thomas took mutually exclusive positions on the meaning the takings clause. Thomas said it only meant public ownership or occupation. O’Connor said it could mean public purpose, but the purpose provided in this case didn’t fit the bill. Yet I see many of the same people lauding both of them.

  5. Strict Constructionist, the Supreme Court can only create an exception to the existing regime if the legislative and executive branches have already violated it. It’s not like the Supreme Court just one day woke up and say, “Hey! Let’s approve random drug tests!” The legislative and executive branches had already enacted laws approving them.

  6. The shocking thing is that there is a magazine called Workplace Substance Abuse Advisor. Perhaps I’ll give it a write up in the next issue of Waste of Paper and Ink Monthly.

  7. Jacob,
    I think what the pee testers really want is random suspicionless testing of all students, which will poke the camel’s nose far enough under the tent to allow random suspicionless testing of all citizens. I agree with comments I’ve heard on Reason that Roberts’ core appeal to Bush appears to be his willingness to defer to law enforcement and the narcocracy. And while everyone is spewing brimstone over abortion, the Scalia court will be quietly chipping away in the background at the first, fourth, fifth, sixth, and eighth amendments.

    Which is yet another reason that we need to start putting money, time, effort into selecting electable Libertarian candidates and running them for Congress. All of the liberty-destroying power appears to be aggregating in the US Congress, with the courts and the executive failing to stand up for liberty and natural rights. So here’s what I propose we all think about doing:

    1) Identify vulnerable US House districts, where an incumbent is stepping down and challengers appear to not have much name recognition and/or vested support.
    2) Match these districts with well-known well-liked media or industry celebrities who live in the district (or could move like Hillary) and happen to be libertarians either in name or in philosophy
    3) Impress upon them the urgent need to rollback incursions into the bill of rights, and the seriousness of the situation
    4) Persuade them to front an effort to take those vulnerable House seats away from the liberty stealers.

    I really see this as the only way forward. Sure, Libertarian party activists overall are a bunch of kooks, especially at the national level. But, just like Ron Paul is a Republican in name only, these celebrity candidates need not be concerned with all of the inner turmoil of the lp. All they need to do is convince voters that they are the best people for the job, that the current policies have failed, and that they have workable solutions.

    I hope we can do this, because at this point we are swirling down the toilet, very close to the hole.

  8. RandyAyn, Do you even need to go that far? What I mean is that just as the Christian Coalition was able to create a block of voters to vote for candidates of their persuasion the libertarian leaners can form some sort of Libertarian League to nudge the parties more our way. Or would that require too much organization from a bunch of individualists.

  9. In the views of the wingnuts, drug testing needs to be tipped to the point where you have to piss in a cup for a driver’s license. Make no mistake about it, that’s where this is headed.

  10. RandyAyn, Shadowhunter:

    I like the fact that you’re both throwing out some ideas in order to actually do something about these problems rather than just bitch about them in places like this and then get on with the day. Here is an idea that I’ve been working on the last day or so- see what you all think…
    Is there a Libertarian type PAC like the NRA, the NEA, AIPAC, AARP, and so on? If there isn’t, why isn’t one formed? We have plenty of thinktanks and publications that can serve as a base (Reason is obviously one). Instead of raising money to spend on vanity runs for president or on candidates who routinely get 2% of the vote, why not take the money and try to influence reps/dems to vote on important issues with individual and property rights in mind? We need to play the game like the big boys do, not search for this utopian ideal. LPAC- the Libertarian Political Action Committee. What do you think?

  11. Wait, I thought us libertarians were the wingnuts…but I think you guys are totally right.

    The drug war is the biggest threat to this nation, period. I ain’t worried about some punk-ass terrorists, it’s our own governmental drug warriors that really scare me.

  12. …will be open to tipping the constitutional balance in favor of safety and drug testing over the limited privacy interests of the individual.

    Wow, these people really are as evil as I suspected.

  13. Shadow Hunter, Swede,
    Yes I agree with your approach as well. I think the PAC lays the groundwork intellectually just as PNAC did for the neocons. Cato is analogous to that, but they are more like an actual think tank, rather than a political advocacy group. I fully agree that a LPAC could promote the philosophy while we search for viable candidates to run.

    One thing I wanted to mention: As this drug war madness escalates, advocates of drug legalization will become more attractive to those constituents worried about civil liberties yet also terrified of drug legalization. There comes a point (has come a point if you ask me) where it is obvious even to ordinary citizens that the drug war is much more of a threat than outright legalization. We must seize that changing electoral perspective and run with it in order to preserve liberty. A potent political advocacy group can lay the philosophical foundation to make the choice we face much easier to articulate.

  14. 1) I have a question for the Con Law types: is there always only one right answer to a Constitutional question?
    Con or not, for Law types the answer to this kind of question is always “it depends”.

    2) In the views of the wingnuts, drug testing needs to be tipped to the point where you have to piss in a cup for a driver’s license.
    No, they think it needs to be tipped to the point where you have to piss in a cup to drive a car. Next, it’ll be in order to walk down the street. (Public sidewalks! Danger to others!)

  15. The problem with an LPAC is that the way you move legislation is relentless focus on a single issue, one small enough to fit in a single bill. Getting movement on a broad range of issues would mean setting aside all but one or two and working those first, then attacking the next issue and so on down the line. This means getting a bunch of libertarians to agree on a single most important issue, one which is sufficiently important that advancing it justifies possibly harming other libertarian issues. Good luck on that.

  16. I have my own ideas for ways to leverage small numbers into political outcomes, but all of those ideas require that this small group work together in a focused manner. How to do that? No clue.

    I mean, judging from the way libertarians discuss things, I can just imagine the issue where they have to pick the #1 issue:

    Somebody would say “The right to control your property is the most important right of all, and anybody who disagrees is a statist!”

    Somebody else would say “The right to defend yourself is the most important right of all, and anybody who disagrees is a statist!”

    And then yet another person would say “The right to control your own body is more important than any other right, and anybody who disagrees is a statist!”

    Finally, another person would say “Our civilization is under attack and none of these liberties will survive in a Sharia state, so the number one issue must be defense against Islamofascism!”

    The first person would decline to donate any of his rightfully earned money to the cause unless the others are kicked out. The second person would simply glare at the others with one hand on his weapon, in case it gets ugly. The third person would exercise control over his body and leave the room to go smoke some weed. And the fourth person was going to vote for a Republican anyway.

    OK, to be serious, I am inclined to believe that single-issue advocacy is more fruitful. Small-l and Big-L l/Libertarians tend to be very protective of the word “l/Libertarian.” They’ll be very reluctant to endorse any “focused” libertarian organization that prioritizes differently than they do. But a lot of l/Libertarians contribute in some way to single-issue groups that don’t call themselves libertarian: Gun rights groups, drug reform groups, civil liberties groups, etc.

    My approach? I support a handful of single-issue organizations. One of them is the ACLU. And yes, I know, they aren’t perfect. But in an era where the executive branch is claiming the power to detain US citizens captured on US soil without trial or charges, I’m putting aside differences to support the nation’s strongest civil liberties organization.

    In elections, I vote (and occasionally donate and campaign) for whoever the best candidate in the race is: A polished LP candidate, a maverick Republican, or sometimes a maverick Democrat. If there’s no candidate who gets me excited I usually just vote LP, and if there’s no LP candidate I’ll vote for any third party just to send a message. If there’s an interesting independent I’ll vote for him. In the CA gubernatorial recall there were 3 LP candidates, none of them impressive, so I voted for a successful entrepreneur and 1st amendment defender (Larry Flynt).

  17. Shorter version of my previous post:

    How many people here would support an organization pushing for a sales tax cut (but not outright repeal)? Or for an end to farm subsidies (but not other forms of economic meddling)?

    How many would still support that group if it called itself “libertarian”?

  18. I am sympathetic to the idea that you do what’s possible, and that is politics, the art of the possible. Since both parties are, in the end, equally reprehensible, I like to see libertarians focus on tipping close races. Even if carrying through on a threat gets the Democrat elected, I think it’s well worth it overall. I think the NRA caused the Democrats such extreme pain in 2000 (possibly even being the cause of Bush’s election,) they still seem to be reeling from any mention of “gun control.” In terms of practical outcomes, that’s one of the best I’ve seen in a long time.

  19. Atlas Bugged-

    You may be fine with trying to tip close races. But wait until one of the 2 candidates is allegedly really good/really bad on somebody’s pet issue. “How can you pretend that both are just as bad when THIS issue is CLEARLY the MOST IMPORTANT?!?!?!?!? We should all support [insert-allegedly-lesser-evil-here] instead of throwing a tantrum and spoiling him/her!!!!”

  20. On the topic of random urine testing: I am willing to support it if, when I test clean, I am then granted the right to pee wherever I want, whenever I want. This is especially handy here in New York, where a long train ride and lack public facilities conspire to make one very uncomfortable.


  21. Thoreau, you made an excellent point except for one small mistake: the fourth person’s response would be to threaten subscription cancellation and bewail the lack of real libertarians on this board.

  22. Well, I would throw money at such an organiztion. And think of all the hollywood types that self identify with libertarians.

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