The Almost Overwhelming Temptation: The Hegemony of Drug War Discourse in Recent Federal Court Decisions Involving Fourth Amendment Rights

Introduction

In Willis v. Anderson Community School Corporation, n1 the Court of Appeals for the Seventh Circuit ruled that a school district had not shown a compelling need that would justify invasive searches of students by drug testing. n2 The Willis court stated:

At the outset of our inquiry into the [district's] need, we must confess to the almost overwhelming temptation, given the effect that drugs have on the children who use them and on the educational process in general, to make the importance of deterring drug use among school children the beginning and end of our analysis. n3

In Willis, the court resisted the temptation to substitute rhetoric for facts and analysis, but the hegemony of drug war n4 discourse has become so powerful that it has undermined judicial analysis and independence in an array of cases both in the U.S. Supreme Court and the federal circuits. n5 This undermining of judicial inquiry by a hegemonic drug war discourse is a dangerous phenomenon.

"Hegemony" refers to the persuasive use of power by dominant groups to maintain authority over subordinate groups by "winning and shaping consent so that the power of the dominant classes appears both legitimate and natural." n6 Hegemony is thus achieved by framing issues and ideas. n7 In the  [*140]  case of drug war discourse, hegemony has been achieved by the repeated characterization of drugs and drug users in strongly negative terms and the framing of anti-drug policies with metaphors of war, scourge, and epidemic. This discourse has usurped moral authority and silenced oppositional voices. n8
William Bennett, former Director of the Office of National Drug Control Policy (or, the "Drug Czar"), illustrated this when he said that "the simple fact is drug use is wrong. And the moral argument in the end is the most compelling argument." n9

The power of this totalizing discourse on judicial analysis and independence is the focus of this Comment. This Comment will look at two particular aspects of the discourse: the hegemonic quality of the discourse and the use of metaphor. n10

Part I of this Comment will explore the history and rhetoric of the drug war since the 1980s. n11 Part II will examine the appearance of hegemonic drug war discourse in cases involving Fourth Amendment issues. n12 Part III will analyze the effect of this hegemonic drug war discourse on federal judicial  [*141] analysis. n13 Part IV will examine the consequences to judges who have resisted the hegemonic power of drug war discourse. n14

This Comment concludes that hegemonic drug war discourse subverts the courts' ability to analyze issues and make independent decisions. Consequently, the discourse undermines legal reasoning, limits judicial independence, and circumscribes the scope of intelligent discussion about drug issues in American jurisprudence.

I. Recent American Drug Policy and Rhetoric

A. The Modern War on Drugs

 The criminalization of drugs and drug use has a long and complex history in the United States. n15 Starting with the Harrison Narcotics Act n16 in 1914, the federal government has steadily moved toward defining illicit drug use as a criminal (as opposed to a medical or social) problem that needs a criminal law solution. n17 At the end of the twentieth century, the paradigm of drug use as criminal activity frames most drug use discourse to the exclusion of other viewpoints. n18 This latest manifestation of America's attempt to deal with drug use among its citizens has developed some distinct themes and devices. These include: (1) a hegemonic discourse that usurps moral authority, while presupposing agreement; and, (2) the use of metaphors to frame the issue and justify U.S. drug laws and policy. n19

President Richard M. Nixon was the first president to use the war metaphor in describing his domestic policies on drugs and drug use. n20 The metaphor quickly entered popular discourse and became a tool used by politicians and policy makers to frame drug abuse, which some analysts consider to be essentially a medical problem, as a national crisis manageable only by legal sanctions. n21 Thus, drug use became a national emergency requiring the ex-  [*142]  treme measures due any war or national crisis. n22 President Ronald W. Reagan continued the modern drug war. n23 In 1986, he gave a national anti-drug address, televised live from the White House. n24 Like President Nixon before him, President Reagan framed the attack on drug use through metaphors of war, but added a twist - he used the metaphor of illness by referring to the "epidemic" of crack smoking. n25 He also described drug use as traitorous activity that threatened the values that underlie American democracy.

"Drugs are menacing our society. They're threatening our values and undercutting our institutions. They're killing our children. Drug abuse is a repudiation of everything America is. The destructiveness and human wreckage mock our heritage." n26 By describing drug use in this manner, Reagan not only continued previous drug discourse but cemented the paradigm of illicit drug use as a national crisis, in the battle against which we would brook no opposition. n27

After his election in 1988, President George Bush was equally dedicated to America's drug war and urged a policy of "zero tolerance" for drugs and  [*143] drug use. n28 Declaring that "this scourge will stop," n29 President Bushcoupled his inflammatory rhetoric with a number of stringent new anti-drug policies such as harsher criminal justice policies and work place drug testing. n30 President Bush was also attuned to the value of publicity. One controversial example involved the discovery that DEA agents had staged the drug bust that netted crack cocaine that President Bush used for a prop in a televised national address. n31 The staging called into question his point that crack cocaine had become so readily available that it could even be purchased across the street from the White House. n32 President Bush's policy of zero tolerance served to frame even casual drug use as irresponsible and even evil, as a behavior that directly contributed to murder and mayhem both in the United States and abroad. For President Bush, any American who used drugs became an enemy within. n33 He stated in 1989 that "casual drug use is responsible for the casualties of the drug war. From the city streets of America to the street bombings of Colombia, even dabblers in drugs bear responsibility for the blood being spilled." n34

When William J. Clinton became President in 1992, there was speculation that drug policy might move in a different direction, but this belief proved illusory. n35 While President Clinton did take the initiative to increase spending on drug treatment and other programs aimed at reducing demand, these proposals were either rejected or under-funded by Congress. n36 And while President Clinton may not have engaged in the same level of anti-drug rhetoric as his predecessors, the hegemony of drug war discourse continued [*144] to control and channel the general discussion of drugs and drug policy. The level of arrests for drug law violations during his administration was the greatest in recent memory. n37

B. Hegemonic Discourse and the Use of Metaphor

Supporting and informing these ever-tightening policies has been a hegemonic discourse that (1) usurps moral authority while silencing oppositional voices and (2) uses metaphor to channel ideas. Politicians attempting to influence the public perspective on drug use often frame the issue in a way that leaves no room for disagreement. In his address to the nation on drug use, President Bush declared, "All of us agree that the gravest domestic threat facing our nation today is drugs." n38

Any difference of opinion with regard to drug use is rejected out of hand. n39 When Drug Czar William Bennett made his "moral argument" n40 against drugs, he implicitly labeled those who disagreed with his drug policies as immoral. Attacking the values, integrity, and even sanity of those who disagree with current U.S. drug policy serves to enforce the hegemonic discourse and keep dissent to a minimum. Christopher Buckley, in his novel Charlie's Private War, created a vigilante hero who decided to murder every individual who had any part in the manufacture, distribution, or sale of a bag of cocaine purchased by his granddaughter who had died of an overdose. Borrowing an epigraph from H. L. Mencken, Buckley explained his hero's motivation: "Every normal man must be tempted at times to spit on his hands, hoist the black flag, and begin slitting throats." n41

Lack of facts or evidence does not curb such all-encompassing statements. In 1998, former Drug Czar General Barry R. McCaffrey announced that he would not visit a coffee house that sold marijuana while on a trip to the Netherlands and described the Netherlands' drug policies as "an unmitigated disaster." n42 These comments caused consternation among McCaffrey's  [*145]  Dutch hosts and illustrate how far drug rhetoric can stray from the truth. n43 The Netherlands'policy of tolerating and regulating drug use has produced no widespread drug use and the rates of death from overdose and HIV among drug users are far lower than American figures. n44

Metaphor is used to support this hegemonic discourse and frame the issues. n45 The favored metaphors include war, n46 scourge, n47 and epidemic. n48 Such metaphors stigmatize drug use and drug users, and create a climate in which informed conversation about the legal and social aspects of drug use are severely circumscribed. The power of metaphor should not be underestimated. n49 This power is recognized and studied. n50 William Elwood explains the use of metaphor by American presidents in framing the drug debate:

We understand these structures as a sequence of unfolding subpatterns. For example, the pattern for war includes soldiers and enemies, attacks and defenses, progressive victories, and ultimate victory that vanquishes the enemy. To impose the definition of a war pattern on "the drug problem" proffers a new and bellicose perspective to inform our thoughts, discourse, and experience regarding the issue of illegal drugs. n51

The most popular rhetoric used in drug policy discussions today is, of course, the rhetoric of war. This rhetoric not only gives legitimacy to arguably ineffective policies, but also has the effect of equating disagreement or dissent with treason. n52 Drug users become the enemy within, who by the very act of using drugs forfeit their constitutionally guaranteed rights.

The de- [*146]  scription of government policy as a war implies a national emergency that warrants extreme measures. War metaphors have also served to rally support for policies that might be untenable in a non-emergency situation. n53 Notes and handouts for a Republican party rally in 1998, orchestrated by Speaker of the House Newt Gingrich and his aides, were obtained by Peter Baker of the Washington Post:

How should they describe the drug problem in America? A sheet of talking points suggested terms like "epidemic," "crisis," "scourge" and "poison." How about their efforts to deal with it? Try such words as "mobilize," "deployment," "battle plan" and "conquer." Fuller sample quotes were provided as well: "We must send a clear and unequivocal message to parents, teachers and the peddlers of poison" was one example, one that happened to neatly mirror a similar phrase included in the drug chapter of a recent memo sent to Republican lawmakers by GOP pollster Frank Luntz offering advice on the use of language in politics. n54

The war metaphor serves to rally support for personal sacrifice and various efforts that might abridge certain rights. While running for governor, Pete Wilson explained his proposals for mandatory drug testing of pregnant women and new drivers: "We won't win this war on drugs by pretending we can "punish the pushers' without holding users responsible for their choice." n55

Defining drugs as a scourge is also popular. Early in his administration, President George Bush declared he would stop the drug "scourge." n56 When laws enacted against crack use came under criticism for being too harsh and leading to staggering incarceration rates, U.S. Attorney General Edwin Meese, III maintained that "crack cocaine was the scourge of the inner city." n57 In 1998, the Chairman of the House Committee on International Relations, Benjamin A. Gilman, argued with the White

House over its refusal to purchase Black Hawk helicopters for use by Colombian police. Gilman declared: "Let's get serious and fight this scourge with the tools and equipment our good friends ... want and need to fight our fight, at its source." n58

The term "epidemic" has been widely used to refer to crack use n59 but it has also been used to describe the use of other drugs. Drug Czar Barry  [*147] McCaffrey, while speaking at a conference in California, described the use of methamphetamine and other drugs by saying: "We do not just have a national drug problem. What we really have is a series of local drug epidemics." n60 An interesting concomitant to the epidemic rhetoric is the comparison of drug users to vermin, thus equating human beings who choose to use illegal drugs with loathsome disease carriers. The title of a 1998 Philadelphia Daily News article on drug use in North Philadelphia declared, "Dopers Zip Like Roaches," and conjectured in the text that if an atomic bomb were dropped on the city, the only creatures to survive would be drug users and cockroaches. n61 In a 1999 New York Times article, New York City Police Commissioner Howard Safir made a similar comparison while talking about policing drugs in Harlem: "You can spray once and they come right back so you have to spray again." n62 A 1986 Newsweek editorial was titled, "The Plague Among Us," and described drug use as an "epidemic ... as pervasive and dangerous in its way as the plagues of medieval times." n63

II. The Curtailing of Fourth Amendment Rights in Recent Federal Court Decisions

The drug war has affected many areas of the law, but perhaps none more than the area of Fourth Amendment rights. n64 In a series of cases over the last two decades, the federal courts have changed the balance of Fourth Amendment rights to privilege the goals and tools of the drug war over constitutionally protected rights. n65 Beginning in the 1980s, the government's array of weapons in the drug war grew to include drug courier profiles, n66 weakened  [*148]  judicial enforcement of privacy rights, n67 mandatory drug testing, n68 mandatory minimum sentences for drug offenses, n69 and property forfeiture in drug-related cases. n70

To decide Fourth Amendment cases, courts use a balancing test. n71 To be held constitutional, a search must be reasonable within the "totality of circumstances." n72 Deciding if a search is reasonable requires the court to weigh "the scope of the legitimate expectation of privacy" and the "character of the intrusion" against the "nature and immediacy of the governmental concern" and the "efficacy of the intrusion." n73 Additionally, the government can argue for a "special need" that goes beyond the normal parameters of law enforcement. n74 In cases involving drugs, the courts often tilt the balance in favor of the government and to the detriment of constitutional rights. Courts often explain what they are doing through the use of drug war discourse and metaphor. n75

[*149]  The trend is to value the tools of the drug war over individual privacy rights, a development so pervasive that it carries the unofficial label of the "drug exception" n76 to the Fourth Amendment. This phenomenon in the federal courts mirrors the totalizing discourse of the drug war in the larger society. An examination of some recent federal court decisions reveals that popular drug war discourse informs judicial analysis and subverts independence. This discourse appears in numerous cases, both in the Supreme Court and lower federal courts. In cases that have serious effects on Fourth Amendment rights, one expects informed constitutional analysis, not the use of popular discourse. n77

Two prominent cases illustrate the curtailing of Fourth Amendment rights by the highest Court. n78 In each of these cases, drug war discourse appeared in the decision. In National Treasury Employees Union v. Von Raab, n79 the Court held that it did not violate the Fourth Amendment rights of U.S. Customs Service employees to require them to undergo urinalysis to screen for drugs, even though there was no evidence of drug abuse among the employees. n80 The Court reasoned that "unfortunately no segment of society is immune from the threat of illegal drug use" and "there [was] not room in the Customs Service for those who [broke] the laws prohibiting the possession and use of illegal drugs." n81 The Court also stated that such employees would be more susceptible to bribery or blackmail. n82 The fact that there was no evidence that bribery or blackmail existed, or had ever existed, did not affect the Court's analysis. The Court reiterated its position that "neither a warrant nor probable cause, nor, indeed any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." n83

In Vernonia School District 47J v. Acton, n84 the Supreme Court found that an Oregon school district's policy of testing student athletes for drugs did not [*150]  violate the students' Fourth Amendment rights. n85 The Court focused on the central issue, stating that schoolchildren committed to the care of the school authorities have a lesser expectation of privacy. n86 As in other cases where the Court found drug testing to pass constitutional muster, the Court also examined the nature of the government's interest. n87 The Court required that the government demonstrate a compelling need in order to justify the intrusion. n88 Substituting drug war rhetoric for facts and evidence, the Court found that the government's need met the test. n89 Talking about the alleged drug problem at the particular school in question, the Court discussed the far-reaching effects of drugs:

And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. n90

This general discussion of drug use appears irrelevant to the case at hand. There was almost no evidence of a drug problem at the particular school. Despite this lack of evidence, the Court quoted from the District Court's opinion and described the disciplinary problems allegedly caused by drug use as having reached "epidemic proportions." n91

The federal appeals courts have also rendered decisions in which drug war discourse was used to determine whether compelling interests existed sufficient to outweigh privacy rights. n92 In Miller v. Wilkes, n93 the U.S. Court of [*151]  Appeals for the Eighth Circuit, citing Vernonia, ruled that the school district's policy of testing students for drugs did not violate the Fourth Amendment. n94 The court stated that even though no evidence had been presented to show a drug problem existed, the mere possibility of drug abuse was enough to constitute a compelling interest:

Perhaps no public school is safe from the scourge of drug and alcohol abuse among its students, and it is in the public interest to endeavor to avert the potential for damage, both to students who abuse and to those students, teachers, family members, and others who are collaterally affected by the abuse, before the problem gains a foothold. Even though no harm evidently is yet quantifiable in the Cave City schools, we conclude that the possible harm against which the [School District] seeks to guard is substantial. n95

In Aubrey v. School Board of Lafayette Parish, n96 the U.S. Court of Appeals for the Fifth Circuit used similar language to uphold an employee testing policy. n97The Court explained its rationale:

Unfortunately, neither our workplaces nor our elementary schools are immune from the drug scourge causing such problems in our land. The Board's program is designed to prevent drug users from obtaining a safety sensitive position and to aid in detecting those employees in such positions who use drugs ... . We find the Board's interests to be substantial indeed. n98

The substitution of drug war rhetoric for reasoning undermined the court's analysis and led to a logical fallacy. Even if no one is immune from "the drug scourge" (an arguable hypothesis), it does not automatically follow that anyone or everyone will fall prey to it. In addition, even if it could be proven that all students are susceptible to the lure of drug use, there is no evidence that mandatory drug testing is the most effective or least intrusive way to prevent the problem.

In 1997, the U.S. Court of Appeals for the District of Columbia upheld mandatory random drug testing for the employees of the Office of Budget and Management (OMB). In Stigile v. Clinton, n99 the court found that OMB employees had access to both the President and Vice President, and therefore the government's need for security outweighed an employee's right to privacy. n100 The court repeatedly emphasized the danger to the President and Vice President posed by OMB employees who might use drugs, despite the  [*152]  court's own admission that there was no evidence of a specific threat. n101

Another area in which Fourth Amendment rights have been limited is police searches. n102 In Sherwood v. Mulvihill, n103 the U.S. Court of Appeals for the Third Circuit held that a warrant obtained through false statements still provided cause for a search and there was no violation of the claimant's Fourth Amendment rights. n104 The majority claimed that the decision was "fallout from the drug scourge afflicting our society." n105 The dissenting judge disagreed, calling it a clear case of overzealous law enforcement agents deliberately falsifying information to get a search warrant. n106

In United States v. Dennis, n107 the U.S. Court of Appeals for the Seventh Circuit upheld the search and seizure of a postal package based on a narcotics package profile. The defendant argued that the profile was broad and could have applied to packages not carrying drugs, and that such profiling did not satisfy the test for reasonable suspicion. n108 The court rejected this argument, explaining that "in certain circumstances wholly lawful conduct may justify an officer's suspicion that criminal activity is afoot." n109

III. Analyzing the Discourse

A close analysis of the language of these cases reveals how the totalizing discourse of the drug war subverts the courts' legal analysis and judicial independence. The discourse has become so pervasive and overwhelming that even dissent becomes channeled to support the hegemonic framework of the discourse. Rhetoric has been substituted for fact and evidence and the power of this discourse has caused the courts to abandon objective balancing in cases involving drugs. Recognition of the power of hegemonic discourse and  [*153] metaphor are not new to judicial analysis. In his fascinating study of metaphor in First Amendment cases, Haig Bosmajian analyzes the use of language by American courts. n110 Bosmajian points out the power and pervasiveness of metaphor in legal language:

Language in law is rife with metaphors. Judges and commentators have created a legal landscape inhabited with, among other things, slippery slopes, bright and blurred lines, constitutional foothills, scales of justice, level playing fields, and a wall of separation between church and state. Metaphors are not just illustrations offering graphic images or concrete versions of legal concepts. They are models - shorthand versions of reality that emphasize or exclude in order to make a point. n111

As stated earlier, some of the most popular metaphors in the U.S. government's drug policy have been the metaphors of war, scourge, and epidemic. n112 The use of drugs by otherwise law-abiding, productive citizens is enough to create a national crisis, a veritable state of war. Such a dire situation calls for dire measures. The interests of the government become compelling.

When federal courts hear cases involving drugs and possible Fourth Amendment rights violations, the courts use a balancing test that weighs the individual's right to privacy against the government's need to enforce drug laws. n113 When deciding such balancing issues the court inevitably opens itself to the charge of subjectivism. In Von Raab, the U.S. Supreme Court's balancing analysis weighed the "crisis" of drug use. n114 The Court explained that the "Customs Service is our Nation's first line of defense against one of the greatest problems affecting the health and welfare of our population. We have adverted before to "the veritable national crisis in law enforcement caused by smuggling of illicit narcotics.'" n115 The Court went on to explain that "it is readily apparent that the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment." n116

The dissenting justices, however, did not see the ready appearance of a compelling interest. In his dissent, Justice Scalia, joined by Justice Stevens, pointed out that while drug testing might not violate the Fourth Amendment rights of employees in an area in which any misconduct might produce "catastrophic social harm," n117 this was not the situation in the case before the Court. n118What Justice Scalia failed to address is that the use of metaphors  [*154]  such as war, scourge, and epidemic has created in the minds of many Americans, including some Supreme Court Justices, a social reality that equates any drug use with catastrophic social harm.

Justice Scalia implicitly acknowledged the use of metaphor in his dissent. While arguing that the Customs Service's real intention was not to deter drug use but to make a symbolic statement that it is serious about its "war on drugs" and its intention to "eliminate this scourge of our society," n119 Scalia stated that the importance of such symbolism is not enough to justify the impairment of individual liberties. n120 He went on to argue:

I decline to join the Court's opinion in the present case because neither the 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 a symbolic opposition to drug use. n121

Another factor in the hegemony of drug war discourse is seen in the manner in which both politicians and policy makers announce drug-related decision making as if there were no room for argument or disagreement. n122 Just as President Bush stated that all Americans would agree that drugs are the gravest threat facing our nation, n123 judicial opinions also make use of this stratagem. This rhetorical device serves to bolster the government's argument for a compelling interest. In Von Raab, n124 the Court stated that "petitioners do not dispute, nor can there be any doubt, that drug use is one of the most serious problems confronting our society today." n125 The Court also deemed drug use a "pervasive social problem," n126 although the government's facts showed no current or former problem with drug abuse in the Customs Service. n127

In one of two dissents, n128 Justice Scalia, joined by Stevens, argued that while the government has the right to deny promotion or dismiss employees who use drugs, the real issue was whether the steps taken to detect drug use were constitutional. n129 The dissenters found they were not. n130 Justice Scalia went on to castigate the majority for its failure to require evidence of a drug use problem among Custom Service employees. He quoted the Commissioner of Customs who admitted that he "believeed that Customs is largely drug-free," that "the extent of illegal drug use by Customs employees was  [*155]  not the reason for establishing this program," and, that he "hoped and expected to receive reports of very few positive findings through drug screening." n131 Justice Scalia went on to note that the Commissioner's hopes had been realized and that there had been only five positive test results among the 3,600 employees tested. n132 For Justice Scalia, the rhetoric of the drug war was a poor substitute for evidence when the Court was deciding the issue of compelling interest. He declared:

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 ... . Perhaps concrete evidence of the severity of a problem is unnecessary when it is so well known that courts can almost take judicial notice of it; but that is surely not the case here. n133

This critique is well taken but it fails to analyze why the majority is willing to dispense with requiring evidence of actual harm and is still able to find the state's need compelling. The majority seems to be saying that the mere potential for drug use, and the harm that could ensue from that drug use, is sufficient in itself to support a compelling interest argument. In Von Raab, hegemonic drug war discourse, with its manufactured social reality of war, plague, and epidemic appears to have skewed the balance in favor of compelling interest.

This substitution of rhetoric for fact and evidence is an issue in another prominent Supreme Court case. In Vernonia v. Acton, n134 the Court's analysis began with the hegemonic claim that all reasonable people would agree with the compelling nature of the government's interest: "That the nature of the concern is important - indeed, perhaps compelling - can hardly be doubted." n135 The majority abandoned any evaluation of the facts in its finding of compelling interest:

We are not inclined to question - indeed, we could not possibly find clearly erroneous - the District Court's conclusion that "a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion," that "disciplinary actions had reached "epidemic proportions,'" and that "the rebellion was being fueled by alcohol and drug abuse as well as by the students' misperceptions about the drug culture." n136

The record that the Court found so overwhelming consisted of four witnesses who reported that they observed drug-related activity and a new principal  [*156] who "guaranteed" that the high school problems had started in grade school. n137

Justice O'Connor, in a dissent joined by Justices Stevens and Souter, insisted that the Court must follow the record and facts of each case closely in order to guard constitutional rights. n138 Explaining her reasoning, she stated:

It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. But we must also stay mindful that not all government response to such times are hysterical overreactions; some crises are quite real, and when they are, they serve precisely as the compelling state interest that we have said may justify a measured intrusion on constitutional rights. The only way for judges to mediate these conflicting impulses is to do what they should do anyway:

stay close to the record in each case that appears before them, and make their judgments based on that alone. Having reviewed the record here, I cannot avoid the conclusion that the District 's suspicionless policy of testing all student athletes sweeps too broadly, and too imprecisely, to be reasonable under the Fourth Amendment. n139

But like Justice Scalia in Von Raab, Justice O'Connor failed to address the totalizing drug war discourse that has replaced evidence in some judicial analysis. Justice O'Connor criticized the lack of evidence in the record. n140

In her dissent, Justice O'Connor also strongly criticized the majority for dispensing with the requirement of individualized suspicion. n141In support of the necessity of individualized suspicion, she compared the situation to that of police who might wish to test every individual who enters or leaves a "drug-ridden" neighborhood. n142 She stated that:

Thus, it remains the law that the police cannot, say, subject to drug testing every person entering or leaving a certain drug-ridden neighborhood in order to find evidence of crime. And this is true even though it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhood." n143

In Vernonia, n144 the Court mixed metaphors of evil, disease and infestation to define drug use as an insidious virus that, if left unchecked, would infect the entire school population. n145 The Court found that the school district had a compelling interest in testing its students, even though the facts of the [*157]  case did not indicate any extensive drug use, n146 and what drug use existed was easily discernible by casual observation:

And of course the effects of a drug-infested school are visited not just upon users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the state to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. n147

By declaring that there is a discipline problem of "epidemic proportions" n148 caused by drug use, the school district dispensed with the need for any facts or evidence. Couched in terms of scourge and contagion that threatened the entire school, the district argued compelling interest by mere assertion, which was accepted both by the lower courts and the Supreme Court.

When the Supreme Court accepts that the eradication of drug use is a per se compelling interest - no matter how great or small the actual drug use problem confronting the state actor - the Court is saying that any amount of drug use, real or imagined, justifies curtailing civil liberties. The federal appeals courts, following principles of stare decisis, need apply no higher standard than the Supreme Court. In Aubrey v. School Board of Lafayette Parish, n149 the Circuit Court of Appeals also accepted, a priori, that drug use was clearly a compelling problem. n150 As such, the court stated that:

The Board also asserts that it "has a compelling interest and commitment to eliminate illegal and unauthorized drug use (including the unauthorized use of alcohol), drug users, drug activities, and drug effects from all of its workplaces." The Board has not produced any summary judgment evidence to demonstrate a problem of drug abuse or use in its schools, and although such a showing would be of persuasive value, it is not mandatory ... . As in Von Raab, "petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today." n151

Thus, despite the lack of evidence of a drug problem, the court determined that the school board had a compelling interest in testing employees that overrode the employees' Fourth Amendment rights to privacy. n152 If the courts are willing to dispense with evidence and fact finding in cases involving drugs, the standard being used has more in common with a rational basis [*158]  test, that is, one that asks whether the state actor had any plausible reason for its action. This hardly seems an appropriate standard, and it is unlikely that the federal courts would explicitly declare this intent. Yet a close reading of
these cases gives pause as to the type of standard the courts are actually applying.

The Eighth Circuit, in Miller v. Wilkes, followed a similar line of reasoning. n153The Miller court, citing Vernonia, stated, "It is clear from the facts in Vernonia (if anyone would doubt it) that substance abuse in the schools causes discipline problem, inattentiveness, and general disruption in the classroom ... ." n154 There may be some merit to the argument that illicit drugs used in school negatively affect learning; however, this simplistic statement ignores whether there is any actual drug use in the schools and whether any possible disruption could be dealt with in a less intrusive manner than mandatory drug testing.

The metaphor of drugs as "scourge" was also used in Miller. n155 In Miller, there was no evidence of a drug problem in the schools in question. n156 This did not stop the court from finding the government's case compelling:

There is no "immediate crisis" in Cave City public schools, indeed, there is no record evidence of any drug or alcohol problem in the schools. We do not believe, however, that this difference must necessarily push the Cave City policy into unconstitutional territory, as it does not mean that the need for deterrence is not imperative. n157

The court concluded that because "the possible harm against which the [School District sought] to guard is substantial" the testing policy was constitutional. n158

In Stigile v. Clinton, n159 the District of Columbia Court of Appeals held that the government's interest in protecting the President and Vice President constituted a compelling interest that justified the drug testing of employees of the OMB who held passes to enter the White House. n160 The government stated that employees who used drugs might harm or assassinate the President or Vice President, that they might give clearance to others who intended to harm the President or Vice President, or they might collect information on the movements of these officials and pass it on to those intending the harm. n161

While the government was able to articulate these possible harms, it was unable or unwilling to articulate why drug users are more prone to engage in such activities than other employees. The court mentioned again the supposed higher risk of blackmail or bribery for persons using drugs as it had in  [*159] Von Raab, n162 but it did not say how this risk would be significantly higher than among employees who engage in other illicit activities such as gambling, adultery, or alcohol abuse. For example, the Stigile court repeatedly referred to the possible assassination of the President or Vice President, n163 without explaining why someone who uses drugs might be inclined to commit such an act. The court found that there was a nexus between the "risk posed by a drug-using employee and the evil sought to be prevented by the testing." n164 In rejecting the appellees argument against such a nexus the court explained, "Appellees misunderstand the nature of the nexus requirement. The nexus requirement is not a mechanical test, requiring the court to ask nothing more than whether the harm to be avoided is a result of the tested employee's inability to perform his job properly." n165

Yet, the only way such a nexus can be established is if one holds a belief that people who use drugs are so unstable or devious that they might at any moment attempt an assassination of the President or, Vice President, or that they are so vulnerable to the threat of their drug use being exposed, they would cooperate in the assassination of their President. n166

The court discounted the already intensive security checks that OMB employees must undergo in order to get their jobs n167 and found that the danger of a drug-using OMB employee loose in the White House could have catastrophic effects:

Despite the security procedures in place at the [Old Executive Office Building] and the absence of evidence of a specific threat caused by a drug-using employee of the [OMB], the devastating impact that an assassination of the President would have on this country and its people, and people and nations throughout the world, weighs in favor of special precautions. n168

Even where a court finds that the state has failed to present a special need strong enough to outweigh privacy interests, or where judges dissent from the majority opinion finding for the government, judges feel the need to utilize the metaphors of the drug war and to assure readers that they are aware of the dire consequences of drug use. In United States v. Dennis, n169

the U.S. Court of Appeals for the Seventh Circuit held that there was reasonable suspicion, based on a broad drug package profile and the postal inspector's experience, to detain a package and have a drug detection dog sniff it. n170 In a partial dissent, Judge Ripple questioned the broadness of the package profile  [*160]  reasoning that it did not constitute a particularized or objective suspicion. n171 The enormous number of inhabitants in a city the size of Los Angeles, as well as the number of packages (56.7 million) mailed in the city made the four factors in the package profile essentially useless in establishing suspicion. n172 In addition, the judge found that that conclusory nature of the warrant affidavit, based on inferences from the inspector's experience, unsupported by data, could not provide a judicial officer adequate evidence to find reasonable suspicion. n173 In making this comment the judge implicitly acknowledged one of the most pernicious effects of drug war discourse on judicial reasoning - the substitution of rhetoric for fact and evidence.

After analyzing the majority's faulty reasoning n174 and the fallibility of various types of drug profiles, n175 the dissenting judge addressed the issue of drug law in general. n176 Declaring drugs to be a "problem that plagues the Nation," the judge stated that despite this, we must be careful to respect Fourth Amendment rights. n177 He stated that "we want to give our children a drug-free society. But we also want to give them the constitutional polity forged at Lexington, Concord and Philadelphia." n178 On first blush, this seems like a fine sentiment but on further analysis one has to wonder how it could ever be possible to give our children a totally drug-free society without seriously restricting, or even eliminating altogether, the liberties enshrined in the Constitution. Furthermore, by paying lip service to the idea that drugs are a "scourge" n179 that needs complete eradication, the judge only legitimizes the repressive acts and laws he is criticizing. Despite his intentions, the judge's dissent only serves to bolster the prevailing legal and social paradigm.

In Sherwood v. Mulvihill, n180 the first sentence the Third Circuit Court of Appeals uttered was: "In this section 1983 action, we confront, once again, the fallout from the drug scourge afflicting our society." n181 The court thus framed the issue before facts or law could be analyzed. Police officers in Gloucester Township, New Jersey obtained a search warrant based on information they knew to be false and incomplete. n182 After redacting the affidavit the court found the corrected document supported a finding of probable cause. n183 Seeing the issue as another battle in the drug war, the court had no difficulty in deciding that the "defendant officers' misrepresentations and omissions were not material to the finding of probable cause by the magis-  [*161]  trate." n184 The message the court was sending was that retroactive correction of illegal warrants was justified because the warrant had resulted in an arrest for a violation of drug laws.

These cases reveal patterns of thought and hidden assumptions that undermine the judicial analysis and compromise judicial independence. In each case, the court substituted drug war rhetoric and discourse for fact and evidence. The hidden assumption behind this rhetoric is that drug use, even potential drug use, is a sufficiently serious harm for the government's purposes, and the prevention of this harm (however theoretical) constitutes a compelling interest that easily outweighs an individual's right to privacy. The magnitude of the harm of drug use (actual or conjectural) is considered common sense, and a fact that no reasonable person would dispute. This flawed logic is inconsistent with the objective balancing that is supposed to take place on a case-by-case basis in Fourth Amendment cases, and it pre-ordains the outcome of Fourth Amendment cases involving drugs.

These cases also illustrate how dissent is channeled to support the hegemonic social reality constructed by drug war discourse. In Von Raab, Justice Scalia dissented because he believed that the government had not proven that there was any drug use in the Customs Service, nor that there was any demonstrated connection to harm. n185 But in announcing his dissent, Justice Scalia used drug war rhetoric and accepted the social reality that such rhetoric creates. He referred to government drug policy as "the war on drugs" and called drugs "this scourge on our society." n186 Similarly, in Vernonia, Justice O'Connor dissented because she believed the majority had dispensed with the requirement for individualized suspicion and because the record lacked evidence of any drug problem in the school district. n187 But as she was dissenting, she declared that "it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods." n188 Framing dissent in the language of hegemonic drug war discourse only serves to bolster that discourse by validating its version of reality.

IV. When Hegemony Fails

So pervasive is drug war discourse that it is difficult to find opposing views expressed either from the bench or in general public discourse. When they are expressed, these comments must be couched in such a way that they assure the listener and reader that the judge, whatever his doubts, is willing to follow the current anti-drug policies. n189 An example of this is Judge Juan  [*162] R._Torruella's comments about reforming drug laws. n190 In a law review article published in 1996, Judge Torruella emphasized that, whatever his personal opinions, he would comply with his oath of office. He explained that "the essence of the judicial role is to apply the law regardless of one's personal views or how one might try to change it if one sat, not in the courtroom, but in a legislative chamber." n191 It is telling that Judge Torruella feels compelled to express his loyalty and adherence to his judicial duty when critiquing current drug law. One has to wonder if he would feel this was necessary if he were commenting on any other area of the law.

In addition, Judge Torruella felt compelled to explain that he was not in any way endorsing any type of drug use, "legal or illegal," and that his article was "merely an attempt at a rational discussion of what I understand to be essentially a health and social, rather than criminal, problem." n192 In reassuring his readers that he did not endorse drug use he felt the need to go so far as to include legal drugs as well.

Torruella does well to be tactful in his comments. Judges unwilling to support the prevailing paradigm can face serious consequences. In part, drug war rhetoric has achieved hegemony by focusing on judges who are seen as "soft on crime." n193 As judges who have put constitutional rights before the objectives of law enforcement have left the bench, they have been replaced by judges willing to limit constitutional rights, particularly criminal rights. n194 Occasionally sitting judges have been targets of attempted removal. In 1989, when District Court Judge Robert W. Sweet called for the legalization of drugs, the Washington Legal Foundation responded by filing a judicial misconduct complaint and calling for Judge Sweet's resignation. n195 Sweet survived this challenge, but the threat of removal or impeachment has been used on other judges as well.

In 1996, the power of drug war hegemony was exerted in a more forceful way. When District Court Judge Harold Baer, Jr. ruled against the admissibility of evidence in a drug case, explicit and extreme pressure was brought to bear. Newt Gingrich, then Speaker of the House, and Senator Robert Dole  [*163]  called for Judge Baer's impeachment. n196 President Clinton, who had appointed the judge, declared he might call for Judge Baer's resignation if his judgment was not reversed. n197 The pressure worked, and the judge reversed. n198 Within a month he removed himself from the case entirely. n199

So extraordinary were these attacks, some in the judiciary felt compelled to come to Judge Baer's defense. Jon O. Newman, Chief Judge of the federal appeals court in New York, joined by three of his predecessors, called the attack "an extraordinary intimidation." n200 Members of the judiciary said they had spoken out because Judge Baer's critics were not discussing the merits of the case. n201 Chief Justice Rehnquist chose to defend judicial independence in a more subtle declaration. During a speech at American University Law School, he declared that judicial independence was "one of the crown jewels of our system of government" and removal or impeachment of judges was appropriate only in response to "criminal conduct and not judicial acts." n202

Partly as a result of the unfairness of drug laws and partly in response to the potential for such attacks, some federal judges now refuse to hear drug cases. n203 Judges' qualms about hearing drug cases presents some problems for the administration of the legal system generally but the fact that thoughtful judges ultimately remove themselves is beneficial for the hegemony of drug war discourse. While refusing to hear drug cases may ease the individual judge's conscience, it also removes the voices of reason and opposition and further serves to legitimize the current paradigm. n204

Conclusion

The hegemonic discourse surrounding and fueling the drug war has significantly affected public opinion about the nature of drugs and drug use in the United States. This discourse has also damaged the ability of our courts to engage in traditional legal analysis and has undermined judicial independence. By creating an atmosphere of fear and hysteria, drug war discourse prevents intelligent discussion of drug policy in the public arena. In judicial opinions this fear and hysteria serves to increase the exigency of governmental interests and therefore skews the balancing courts use in deciding Fourth Amendment cases. When drug use is framed as a national crisis needing  [*164]  unanimous and unquestioning support, we lose the ability to intelligently and objectively analyze the social and legal issues.

The effects of this hegemonic discourse must be recognized and confronted. Our courts must not substitute rhetoric for facts and evidence. They must not allow objective judicial analysis to be subverted by the hegemonic discourse of the drug war.

President George Bush in an address on drugs declared, "Drugs have strained our faith in our system of Justice ... ." n205 They have indeed, but not in the ways President Bush envisioned.

Footnotes