Scalia's Mixed Drug War Record

Drug cases show the late justice's fickle fidelity to the Fourth Amendment and federalism.


CBS News

For many years drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." In my latest Forbes column, I explore how Antonin Scalia, who died on Saturday, both assisted and resisted that process during his three decades on the Supreme Court:  

In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity."

Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren."

As those contrasting cases suggest, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.

Read the whole thing.