SCALIA ON DRUG TESTING AND THE DANGERS OF "SYMBOLIC" ACTS

I try to keep an eye out for good quotations in my day-to-day law practice. Today, I just happened to come across an excellent passage in a case written by Justice Scalia, and I thought I'd share it with the L&P readership.

This excerpt may come in handy in some common debates between liberals, libertarians and conservatives for the following reasons. 1) It serves as a nice defense against critics of Justice Scalia who think that the good Justice reflexively panders to the every need and desire of law enforcement, and 2) it is a well-crafted statement of concern about the War on Drugs' lasting effect on consititutional liberties.

The following quotation comes from Treasury Employees v. Von Raab. It's also worth noting, that Scalia is writing here in dissent, joined (oddly enough) by Justice Stevens.

Today's decision would be wrong, but at least of more limited effect, if its approval of drug testing were confined to that category of employees assigned specifically to drug interdiction duties. Relatively few public employees fit that description. But in extending approval of drug testing to that category consisting of employees who carry firearms, the Court exposes vast numbers of public employees to this needless indignity. Logically, of course, if those who carry guns can be treated in this fashion, so can all others whose work, if performed under the influence of drugs, may endanger others - automobile drivers, operators of other potentially dangerous equipment, construction workers, school crossing guards. A similarly broad scope attaches to the Court's approval of drug testing for those with access to"sensitive information." 1 Since this category is not limited to Service employees with drug interdiction duties, nor to"sensitive information" specifically relating to drug traffic, today's holding apparently approves drug testing for all federal employees with security clearances - or, indeed, for all federal employees with valuable confidential information to impart. Since drug use is not a particular problem in the Customs Service, employees throughout the Government are no less likely to violate the public trust by taking bribes to feed their drug habit, or by yielding to blackmail. Moreover, there is no reason why this super-protection against harms arising from drug use must be limited to public employees; a law requiring similar testing of private citizens who use dangerous instruments such as guns or cars, or who have access to classified information, would also be constitutional.

There is only one apparent basis that sets the testing at issue here apart from all these other situations - but it is not a basis upon which the Court is willing to rely. I do not believe for a minute that the driving force behind these drug-testing rules was any of the feeble justifications put forward by counsel here and accepted by the Court. The only plausible explanation, in my view, is what the Commissioner himself offered in the concluding sentence of his memorandum to Customs Service employees announcing the program:"Implementation of the drug screening program would set an important example in our country's struggle with this most serious threat to our national health and security." App. 12. Or as respondent's brief to this Court asserted:"[I]f a law enforcement agency and its employees do not take the law seriously, neither will the public on which the agency's effectiveness depends." Brief for Respondent 36. What better way to show that the Government is serious about its"war on drugs" than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is" clean," and - most important of all - will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.

There is irony in the Government's citation, in support of its position, of Justice Brandeis' statement in Olmstead v. United States, 277 U.S. 438, 485 (1928) that"[f]or good or for ill, [our Government] teaches the whole people by its example." Brief for Respondent 36. Brandeis was there dissenting from the Court's admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government's example of vigor and enthusiasm in combatting crime, but condemning its example that"the end justifies the means," 277 U.S., at 485 . An even more apt quotation from that famous Brandeis dissent would have been the following:

"[I]t is . . . immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Id., at 479.

Those who lose because of the lack of understanding that be-got the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us - who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.