S Salon.com
Monday, April 22, 2002
Justice
Kennedy should recuse himself
His intemperate remarks in a crucial school drug-testing
case clearly betray unacceptable bias.
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By Eric Blumenson ¤ Salon Premium
Exclusive
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As the New York Times
reported it, a recent Supreme Court argument on whether public schools may
impose drug tests on their students was “intense and sometimes downright
nasty.” Before the Court was a school
district’s regulation requiring drug tests of students involved in any
extracurricular activity. Although
there was no reason to suspect that the plaintiff, Lindsay Earles, had ever
used drugs, she was called out of choir and tested – specifically, ordered to
urinate under a teacher’s supervision.
Earles passed, but brought suit against what she believes was an
invasion of privacy and an unconstitutional search. It’s an important case: many school districts are expected to
institute routine, random drug testing if the Court finds it constititutional,
and expulsions of students who fail are sure to follow. It could also inflict severe damage on the
Fourth Amendment, which for two centuries has protected individuals from
searches and seizures unless there is at least some ground to suspect
wrongdoing.
“Most surprising,” said the
Times, “was Justice Kennedy’s implied slur on the plaintiffs.” The Justice imagined a school district with
a “drug testing school” and a “druggie school”, and told the lawyer
representing the Earles family that no parent would send a child to the druggie
school “except maybe your client.” This
was remarkable in two ways. First, it
was indeed a slur: Lindsay Earles had passed the drug test, and her cause was
not drugs but the Fourth Amendment.
Second, its very irrationality, coupled with Justice Kennedy's demeanor
-- the Boston Globe described him as red with emotion as he launched his
"bitter verbal attack" -- betrayed an uncontainable anger towards a
litigant that is entirely absent from Supreme Court arguments on even the most
heinous murder cases. Irrational anger is
one kind of prejudice, and a federal law exists to insulate judicial rulings
from it. This law requires a judge to
"disqualify himself in any proceeding in which his impartiality might
reasonably be questioned." As
Justice Kennedy himself said in another case, “any judge who understands the
judicial office and oath” would insist on his own recusal when his attitude
even appears to be less than detached and impartial.
In some ways, though,
Justice Kennedy’s breach was not remarkable at all, but emblematic of the harsh
and contemptuous treatment dished out to those on the wrong side of the drug
war. We shouldn't be surprised that the
drug war can vanquish the impartiality of a respected jurist when it routinely
undermines so much else that we value.
Most obviously, it trumps liberty; the drug war has given us the most
incarcerated population in the industrialized world, with one quarter of our
two million inmates imprisoned for non-violent drug offenses, and over
1,200,000 arrests annually for drug possession alone.
It also trumps much of our
national agenda. There's the drug
exception to public health: federal law denies health benefits and food stamps
to ex-drug offenders. Equal justice? African Americans comprise 13 % of all
monthly drug users but 74% of those imprisoned for drug possession.
Homelessness? Last month the Supreme Court unanimously ruled that families can
be evicted from public housing on the basis of their child’s use of drugs, even
if it takes place out of the house and the family knows nothing about it. Compassion?
Consider the Justice Department’s aggressive effort to ensure that
cancer patients don’t get the medical marijuana which could alleviate their
pain. In short, the dehumanizing
prejudice once conveyed by the epithet "junkie" remains entrenched 50
years later, promoting a thoughtless disregard for the lives and welfare of
those Justice Kennedy now calls "druggies."
In recent years students
have become targets of the drug war too.
Many thousands of students have been forced to forgo college by a
federal law that denies them college loans because they were once convicted of
a drug offense, and thousands more have been removed from secondary education
under the zero tolerance drug possession punishments that exist in 90% of
public schools. The Court now seems
poised to decide that even without any grounds for suspicion, all students are
suspect. By most accounts, Justice
Kennedy will be casting the deciding vote – a vote that will transmute Justice
Kennedy’s unfounded assumption about Lindsay Earles into an unfounded
constitutional presumption about all schoolchildren.
Justice Frankfurter once
wrote that when a judge cannot “think dispassionately and submerge private
feeling” he should recuse himself. The occasion was a case concerning the
constitutionality of employing muzak on D.C. buses, an innovation the justice
detested. He looked into himself and
found his “feelings so strongly engaged” that he should not participate in the
judgment. In recusing himself, Justice Frankfurter honored the court and its
commitment to “the rule of law, not men.” Justice Kennedy would do well to
follow his example.
salon.com
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