Justice Kennedy

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Monday, April 22, 2002

Justice Kennedy should recuse himself
His intemperate remarks in a crucial school drug-testing case clearly betray
unacceptable bias.

By Eric Blumenson ¤ Salon Premium Exclusive

        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


About the writer
Eric Blumenson is a law professor at
Suffolk University Law School.

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