How Justice Anthony Kennedy Helped Bring You the Surveillance State

Matt Berman

In 1989, the Supreme Court ruled 7-2 in Skinner v. Railway Labor Executives, a decision that upheld drug-testing programs for the railroad industry. The majority opinion, written by Justice Anthony Kennedy, gave the government broad power to drug-test public workers as a means of protecting public safety. Back then, the ruling was a big deal for those concerned about drug use in the workplace. But now it has become a major part of the legal basis for the recently unveiled National Security Agency surveillance programs.

On Sunday, The New York Times' Eric Lichtblau reported that the secret FISA court that oversees intelligence operations and surveillance issues uses the doctrine of "special needs" established in Skinner as a means of justifying increased government surveillance without overriding the Fourth Amendment right to a warrant for searches and seizures. As Lichtblau writes, this applies to the mountains of metadata collected by the NSA.

In Skinner, that doctrine meant that taking blood and urine samples in a drug test was minimal enough of a privacy invasion—with large enough of a public-safety benefit—that it fit a "special needs" exception to the Fourth Amendment.

In his majority opinion, Justice Kennedy, who was also joined by Justice Antonin Scalia, explained why this exception made sense:

In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment.... Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.... We have recognized exceptions to this rule, however, "when 'special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.' " (Griffin v. Wisconsin)


When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context.

In his dissent in Skinner, Justice Thurgood Marshall (joined by Justice William Brennan) was none-too-pleased with the idea of a "special needs" exception to the right to a warrant. "The process by which a constitutional 'requirement' can be dispensed with as 'impracticable' is an elusive one to me," he wrote.

The entire dissent is an incredibly strong argument against the idea of a flexible Fourth Amendment. While it obviously applied to the case at hand, Marshall's argument is broad enough to reflect on Fourth Amendment issues that could come in the future. Excerpts here, with our emphasis:

Constitutional requirements like probable cause are not fair-weather friends, present when advantageous, conveniently absent when "special needs" make them seem not.


In widening the "special needs" exception to probable cause to authorize searches of the human body unsupported by any evidence of wrongdoing, the majority today completes the process begun in [New Jersey v. T. L. O.] of eliminating altogether the probable-cause requirement for civil searches--those undertaken for reasons "beyond the normal need for law enforcement." Ante, at 619 (citations omitted). In its place, the majority substitutes a manipulable balancing inquiry under which, upon the mere assertion of a "special need," even the deepest dignitary and privacy interests become vulnerable to governmental incursion.


The fact is that the malleable "special needs" balancing approach can be justified only on the basis of the policy results it allows the majority to reach. The majority's concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the text of the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest...Because abandoning the explicit protections of the Fourth Amendment seriously imperils "the right to be let alone--the most comprehensive of rights and the right most valued by civilized men," Olmstead v. United States, 277 U. S. 438, 478 (1928)[***676] (Brandeis, J., dissenting), I reject the majority's "special needs" rationale as unprincipled and dangerous.


I believe the Framers would be appalled by the vision of mass governmental intrusions upon the integrity of the human body that the majority allows to become reality. The immediate victims of the majority's constitutional timorousness will be those railroad workers whose bodily fluids the Government may now forcibly collect and analyze. But ultimately, today's decision will reduce the privacy all citizens may enjoy, for, as Justice Holmes understood, principles of law, once bent, do not snap back easily.

It's reasonably crazy to imagine that Justice Marshall saw the government collection of metadata coming, or that he even had any idea that in the future "metadata" would be a thing. But it's not too crazy to think that this exact same constitutional argument and rationale could be used to protest NSA surveillance today.