But that doesn't mean it wasn't anticipated by civil libertarians when that bygone case put us on the slippery slope we've tumbled down. It is thus the perfect time to return to Justice Thurgood Marshall's dissent in Skinner v. Railway Labor Executives' Association.



What follows is a condensed version.

***



The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here is whether the Government's deployment in that war of a particularly draconian weapon -- the compulsory collection and chemical testing of railroad workers' blood and urine -- comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation camp cases, and the Red scare and McCarthy-era internal subversion cases, are only the most extreme reminders that, when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.

In permitting the Government to force entire railroad crews to submit to invasive blood and urine tests, even when it lacks any evidence of drug or alcohol use or other wrongdoing, the majority today joins those shortsighted courts which have allowed basic constitutional rights to fall prey to momentary emergencies. The majority holds that the need of the Federal Railroad Administration (FRA) to deter and diagnose train accidents outweighs any "minimal" intrusions on personal dignity and privacy posed by mass toxicological testing of persons who have given no indication whatsoever of impairment. In reaching this result, the majority ignores the text and doctrinal history of the Fourth Amendment, which require that highly intrusive searches of this type be based on probable cause, not on the evanescent cost-benefit calculations of agencies or judges...

The majority purports to limit its decision to post-accident testing of workers in "safety-sensitive" jobs... But the damage done to the Fourth Amendment is not so easily cabined. The majority's acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens. I therefore dissent.



I.





The Court today takes its longest step yet toward reading the probable cause requirement out of the Fourth Amendment. For the fourth time in as many years, a majority holds that a "'special need, beyond the normal need for law enforcement,'" makes the "requirement" of probable cause "impracticable." With the recognition of "the Government's interest in regulating the conduct of railroad employees to ensure safety" as such a need, the Court has now permitted "special needs" to displace constitutional text in each of the four categories of searches enumerated in the Fourth Amendment: searches of "persons," "houses," "papers," and "effects."