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Great Moments In Authoritarianism


I’m teaching Redding v. Safford School District tomorrow.   As many of you know, this was the the 2009 case in which the Supreme Court ruled the strip search of a 13-year-old girl based on an uncorroborated accusation that she possessed prescription ibuprofen unconstitutional.  One amazing aspect of the case was the response of various school authorities — i.e. to complain that it would have a “chilling effect” on their ability to perform arbitrary strip searches for drugs. Er…what’s supposed to be the problem here again?  And then there was the Clinton-appointed 9CA judge who took us on a funhouse mirror tour of authoritarian illogic, arguing that each search of Redding that didn’t turn up anything justified subsequent searches.  Everything about the case was a window into the ability of the War (On Some Classes of People Who Use Some) Drugs to act as a solvent dissolving civil liberties in their wake.  The extent to which some people were willing to go to in order to justify strip-searching a 13-year old girl based on accusations (that were neither corroborated nor particularly credible) she was guilty of a trivial offense was remarkable.

I’m also teaching National Treas. Emp. Union v. Von Raab,  a particularly poor Kennedy opinion upholding the suspicionless drug searches of Customs Service officials. I know I’ve quoted from Justice Scalia’s dissent before, but since it’s my damned blog and they’re among my favorite passages in the United States Reports, I will again:

I decline to join the Court’s opinion in the present case because neither frequency of use nor connection to harm is demonstrated, or even likely. In my view, the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.


To paraphrase Churchill, all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true. The only pertinent points, it seems to me, are supported by nothing but speculation, and not very plausible speculation at that. It is not apparent to me that a Customs Service employee who uses drugs is significantly more likely to be bribed by a drug smuggler, any more than a Customs Service employee who wears diamonds is significantly more likely to be bribed by a diamond smuggler — unless, perhaps, the addiction to drugs is so severe, and requires so much money to maintain, that it would be detectable even without benefit of a urine test. Nor is it apparent to me that Customs officers who use drugs will be appreciably less “sympathetic” to their drug interdiction mission, any more than police officers who exceed the speed limit in their private cars are appreciably less sympathetic to their mission of enforcing the traffic laws. (The only difference is that the Customs officer’s individual efforts, if they are irreplaceable, can theoretically affect the availability of his own drug supply — a prospect so remote as to be an absurd basis of motivation.) Nor, finally, is it apparent to me that urine tests will be even marginally more effective in preventing gun-carrying agents from risking “impaired perception and judgment” than is their current knowledge that, if impaired, they may be shot dead in unequal combat with unimpaired smugglers — unless, again, their addiction is so severe that no urine test is needed for detection.

What is absent in the Government’s justifications — notably absent, revealingly absent, and, as far as I am concerned, dispositively absent — is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use.

If only Scalia consistently heeded his own powerful words in his subsequent Fourth Amendment jurisprudence.

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