Scalia on Drugs

Cases involving drug prohibition reveal the late justice's fickle fidelity to the Fourth Amendment and federalism.


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 illustrate, 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 February 13, 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.

For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers' bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities. But Scalia also resisted drug warriors' assaults on the Fourth Amendment.

Writing for the majority in the 2001 case Kyllo v. United States, Scalia said police need a warrant to examine a house with infrared technology, looking for heat patterns indicative of indoor marijuana cultivation. In addition to evidence of illegal activity, he observed, such surveillance "might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate.'" While "it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology," Scalia wrote, "the question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy….Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."

In the 2012 case United States v. Jones, Scalia likewise concluded that police need a warrant to track the movements of a suspected cocaine dealer by attaching a GPS device to his car. "The Government physically occupied private property [i.e., the car] for the purpose of obtaining information," he wrote. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Scalia also joined a 2009 ruling that said school officials violated the Fourth Amendment when they searched a student's underwear for unauthorized ibuprofen and a 2014 decision that rejected the warrantless perusal of a suspected drug dealer's cellphone as a "search incident to arrest."

Scalia delivered one of his typically pungent dissents in Prado Navarette v. California, a 2014 case involving a search that found 30 pounds of marijuana in a pickup truck. The search happened only because the police smelled marijuana after pulling the truck over based on "an anonymous and uncorroborated tip regarding a possibly intoxicated highway driver." The majority thought that was enough to justify the stop. Scalia, joined by the Court's three most liberal members, disagreed. "Law enforcement agencies follow closely our judgments on matters such as this," he wrote, "and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers', of a people secure from unreasonable searches and seizures."

A line of cases dealing with drug-detecting dogs nicely captures Scalia's fickle fidelity to the Fourth Amendment. In the 2005 case Illinois v. Caballes, Scalia joined five other justices in approving the deployment of such dogs during routine traffic stops, provided the stop is not "unreasonably prolonged" to facilitate the canine inspection. Eight years later in Florida v. Harris, Scalia joined a unanimous decision that said a police dog's "alert" by itself provides probable cause for a search unless the defendant can show the animal is unreliable—a ruling that effectively empowers every cop with a dog to search cars at will.

Harris raised the possibility that cops also could search homes at will by obtaining warrants based on a dog's purported alert. A month later in Florida v. Jardines, the Court made that prospect less likely, ruling that deploying a drug-sniffing dog at the doorstep of a home qualifies as a search, meaning it generally requires a warrant. Scalia wrote the majority opinion, joined by the unusual left-right alliance of Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. As in Jones, it was the physical intrusion on someone's property—in this case, the "curtilage" surrounding his house—that Scalia deemed constitutionally objectionable.

Last year in Rodriguez v. United States, the Court again restricted the use of drug-detecting dogs, saying police violated a driver's Fourth Amendment rights when they detained him an extra seven or eight minutes so they could walk a dog around his car. Unless police have reasonable grounds to suspect a driver is engaged in criminal activity, the Court said, a routine traffic stop should last no longer than is reasonably necessary to issue a ticket or warning. Scalia joined the opinion, which was written by Ginsburg, generally considered the most liberal justice.

In addition to making it harder for police to catch drug offenders, Scalia made it harder for prosecutors to convict them. He championed a broad reading of a defendant's Sixth Amendment right to confront witnesses against him, which in the 2009 case Melendez-Diaz v. Massachusetts led him to reject a conviction based on lab reports identifying the white powder seized from the defendant as cocaine. Because the prosecution had not presented testimony from the analysts who made that determination, Scalia said in the majority opinion, the defendant had been deprived of his right to question them. 

Scalia also had a mixed record in cases dealing with what happens to drug offenders after they're convicted. He wrote a crucial part of the opinion in Harmelin v. Michigan, a 1991 decision that rejected the argument that a mandatory life sentence for possessing 672 grams of cocaine violated the Eighth Amendment's ban on "cruel and unusual" punishment. "Severe, mandatory penalties may be cruel," he said, "but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history."

Yet Scalia was also largely responsible for a line of Sixth Amendment cases that made it possible for many drug offenders to serve less time in prison than they otherwise would have. Scalia argued that sentencing guidelines violate the right to trial by jury if they charge judges with determining facts that automatically increase defendants' punishment. Because that view prevailed, the federal sentencing guidelines (and similar guidelines at the state level) are now advisory rather than mandatory, freeing judges to impose sentences below the recommended range in the interest of justice.

The case in which Scalia's anti-drug prejudices most clearly overwhelmed his avowed principles was Raich v. Gonzales, a 2005 decision that rejected a challenge to the federal ban on marijuana by two medical users in California. The patients, Angel Raich and Diane Monson, argued that enforcing the ban against people who use homegrown marijuana for medical purposes in compliance with state law exceeds the federal government's authority to regulate interstate commerce, the supposed basis for the Controlled Substances Act (CSA). Scalia, who in earlier cases had rejected federal laws that were only tenuously related to interstate commerce, should have been sympathetic to that argument.

Instead Scalia wrote a concurring opinion that said seizing Raich and Monson's medicine, and even prosecuting them for growing or possessing it, were "appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce," since "drugs like marijuana are fungible commodities," and "marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market." Under that reasoning, the power to regulate interstate commerce extends to marijuana that never crosses state lines or even leaves the grower's property, including a plant in a cancer patient's closet or a bag of buds in her bedstand.

Clarence Thomas, Scalia's erstwhile ally in demanding that Congress stick to its enumerated powers, was left to explain the dire implications for federalism in his dissent. "If Congress can regulate this under the Commerce Clause," Thomas wrote, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Scalia's betrayal of federalism in Raich illustrates the extremes to which people can be driven by anti-drug fervor. It seems clear that he shared the pharmacological phobias at the heart of the war on drugs, which makes it even more remarkable that he rose above them as often as he did.

This article originally appeared at Forbes.com.