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Subject: 96-126.ZD Dissenting
Date: 15 Apr 1997 14:26:40 GMT
Organization: Case Western Reserve University, Cleveland, Ohio (USA)
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Xref: relief.cts.com courts.usa.federal.supreme:1342

SUPREME COURT OF THE UNITED STATES
--------
No. 96-126
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WALKER L. CHANDLER, et al., PETITIONERS
 v. ZELL D. MILLER, GOVERNOR OF
 GEORGIA, et al.
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[April 15, 1997]

  Chief Justice Rehnquist, dissenting.
  I fear that the novelty of this Georgia law has led the
Court to distort Fourth Amendment doctrine in order to
strike it down.  The Court notes, impliedly turning up
its nose, that -Georgia was the first, and apparently
remains the only, State to condition candidacy for state
office on a drug test.-  Ante, at 2.  But if we are to heed
the oft-quoted words of Justice Brandeis in his dissent
in New State Ice Co. v. Liebmann, 285 U. S. 262, 311
(1932)--[i]t is one of the happy incidents of the federal
system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the
country--novelty itself is not a vice.  These novel
experiments, of course, must comply with the United
States Constitution; but their mere novelty should not
be a strike against them.
  Few would doubt that the use of illegal drugs and
abuse of legal drugs is one of the major problems of our
society.  Cases before this Court involving drug use
extend to numerous occupations-railway employees,
Skinner v. Railway Labor Executives' Assn., 489 U. S.
602 (1989), border patrol officers, Treasury Employees v.
Von Raab, 489 U. S. 656 (1989), high school students,
Vernonia School Dist. 47J v. Acton, 515 U. S. ___ (1995),
and machine operators, Paperworkers v. Misco, Inc., 484
U. S. 29 (1987).  It would take a bolder person than I
to say that such widespread drug usage could never
extend to candidates for public office such as Governor
of Georgia.  The Court says that -[n]othing in the record
hints that the hazards respondents broadly describe are
real and not simply hypothetical for Georgia's polity.- 
Ante, at 12.  But surely the State need not wait for a
drug addict, or one inclined to use drugs illegally, to run
for or actually become Governor before it installs a
prophylactic mechanism.  We held as much in Von Raab:
-First, petitioners argue that the program is unjusti-
fied because it is not based on a belief that testing
will reveal any drug use by covered employees.  In
pressing this argument, petitioners point out that
the Service's testing scheme was not implemented in
response to any perceived drug problem among
Customs employees . . . .
      -Petitioners' first contention evinces an unduly
narrow view of the context in which the Service's
testing program was implemented.  Petitioners do
not dispute, nor can there be doubt, that drug abuse
is one of the most serious problems confronting our
society today.  There is little reason to believe that
American workplaces are immune from this perva-
sive social problem . . . .-  489 U. S., at 673-674.
  The test under the Fourth Amendment, as these cases
have held, is whether the search required by the
Georgia statute is -reasonable.-  Today's opinion speaks
of a -closely guarded- class of permissible suspicionless
searches which must be justified by a -special need.- 
But this term, as used in Skinner and Von Raab and on
which the Court now relies, was used in a quite differ-
ent sense than it is used by the Court today.  In
Skinner and Von Raab it was used to describe a basis
for a search apart from the regular needs of law
enforcement, Skinner, supra, at 620; Von Raab, supra,
at 669.  The -special needs- inquiry as delineated there
has not required especially great -importan[ce],- ante, at
12, unless one considers -the supervision of probation-
ers,- or the -operation of a government office,- Skinner,
supra, at 620, to be especially -important.-  Under our
precedents, if there was a proper governmental purpose
other than law enforcement, there was a -special need,-
and the Fourth Amendment then required the familiar
balancing between that interest and the individual's
privacy interest.
  Under normal Fourth Amendment analysis, the
individual's expectation of privacy is an important factor
in the equation.  But here, the Court perversely relies
on the fact that a candidate for office gives up so much
privacy--[c]andidates for public office . . . are subject to
relentless scrutiny-by their peers, the public and the
press,- ante, at 15-as a reason for sustaining a Fourth
Amendment claim.  The Court says, in effect, that the
kind of drug test for candidates required by the Georgia
law is unnecessary, because the scrutiny to which they
are already subjected by reason of their candidacy will
enable people to detect any drug use on their part.  But
this is a strange holding, indeed.  One might just as
easily say that the railroad employees in Skinner, or the
Customs officials in Von Raab, would be subjected to the
same sort of scrutiny from their fellow employees and
their supervisors.  But the clear teaching of those cases
is that the government is not required to settle for that
sort of a vague and uncanalized scrutiny; if in fact
preventing persons who use illegal drugs from concealing
that fact from the public is a legitimate government
interest, these cases indicate that the government may
require a drug test.  
  The privacy concerns ordinarily implicated by urinaly-
sis drug testing are -negligible,- Vernonia, supra, at ___
(slip op., at 12), when the procedures used in collecting
and analyzing the urine samples are set up -to reduce
the intrusiveness- of the process.  Under the Georgia
law, the candidate may produce the test specimen at his
own doctor's office, which must be one of the least
intrusive types of urinalysis drug tests conceivable.  But
although the Court concedes this, it nonetheless manages
to count this factor against the State, because with this
kind of test the person tested will have advance notice
of its being given, and will therefore be able to abstain
from drug use during the necessary period of time.  But
one may be sure that if the test were random-and
therefore apt to ensnare more users-the Court would
then fault it for its intrusiveness.  Cf. Von Raab, 489
U. S., at 676, and n. 4.
  In Von Raab, we described as -compelling- the govern-
ment interest -in ensuring that many of these covered
employees do not use drugs even off duty, for such use
creates risks of bribery and blackmail against which the
Government is entitled to guard.-  Id., at 674 (emphasis
added).  The risks of bribery and blackmail for high-
level officials of state government using illegal drugs
would seem to be at least as significant as those for off-
duty Customs officials.  Even more important, however,
is our treatment of the third class of tested employees
in Von Raab, those who -handle[d] `classified' materials.- 
The Court relegates this discussion to a footnote, ante,
at 9, n. 3, and all but dismisses it.  Although the lack
of factual development of the record in Von Raab
prevented us from determining who -handle[d] `classified'
materials,- we did consider the weight of the proffered
governmental interest:
-We readily agree that the Government has a
compelling interest in protecting truly sensitive
information from those who, `under compulsion of
circumstances or for other reasons, . . . might
compromise [such] information.'  Department of Navy
v. Egan, 484 U. S. 518, 528 (1988). . . . We also
agree that employees who seek promotions to
positions where they would handle sensitive informa-
tion can be required to submit to a urine test under
the Service's screening program, especially if the
positions covered under this category require back-
ground investigations, medical examinations, or
other intrusions that may be expected to diminish
their expectations of privacy in respect of a urinaly-
sis test.-  489 U. S., at 677.
  Although petitioners might raise questions as to some
of the other positions covered by the Georgia statute,
there is no question that, at least for positions like
Governor and Lieutenant Governor, identical concerns
are implicated.  In short, when measured through the
correct lens of our precedents in this area, the Georgia
urinalysis test is a -reasonable- search; it is only by
distorting these precedents that the Court is able to
reach the result it does.
  Lest readers expect the holding of this case to be
extended to any other case, the Court notes that the
drug test here is not a part of a medical examination
designed to provide certification of a candidate's general
health.  Ante, at 16-17.  It is all but inconceivable that
a case involving that sort of requirement could be
decided differently than the present case; the same sort
of urinalysis would be involved.  The only possible basis
for distinction is to say that the State has a far greater
interest in the candidate's -general health- than it does
with respect to his propensity to use illegal drugs.  But
this is the sort of policy judgment that surely must be
left to legislatures, rather than being announced from on
high by the Federal Judiciary.
  Nothing in the Fourth Amendment or in any other
part of the Constitution prevents a State from enacting
a statute whose principal vice is that it may seem mis-
guided or even silly to the members of this Court.  I
would affirm the judgment of the Court of Appeals.