Skinner v. Railway Labor Executives' Assn.

Justices Marshall and Brennan dissented. Marshall called the government's compulsory collection and testing of blood and urine "a particularly Draconian weapon" in the war on drugs. "Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great." Marshall noted that times of urgency are times of grave threats to liberty, such as during World War II when Japanese Americans were place in relocation camps and during the 1950s when Senator Joseph McCarthy led an effort to identify and ostracize Communist sympathizers. Marshall observed that when fundamental freedoms are sacrificed in the name of a threat, we later regret it.

Marshall contended that in allowing drug testing without evidence of wrongdoing, "the majority today joins those shortsighted courts which have allowed basic constitutional rights to fall prey to momentary emergencies." Highly intrusive searches should be based on probable cause, not on the "evanescent cost-benefit calculations of agencies or judges." The majority trivialized the intrusiveness of the testing and overlooked flaws in the testing program. " . . . 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."

Marshall criticized the concept of a "special need" making probable cause impracticable and felt that the Court in its decision took "its longest step yet toward reading the probable-cause requirement out of the Fourth Amendment." The amendment should not be subject to shifting judicial majorities who are worried about the problems of the day. The requirements of the Constitution are not "fair-weather friends, present when advantageous, conveniently absent when `special needs' make them seem not." The Court recognized "special needs" exceptions to the probable clause rule since 1985 and since that time has badly distorted the clarity of Fourth Amendment doctrine, according to Marshall. But until the decision in Skinner v. Railway Labor Executives' Assn., individualized suspicion was still a requirement. The majority in this case has completed "the process . . . of eliminating altogether the probable-cause requirement for civil searches." In its place is a manipulable balancing inquiry. This balancing approach can be justified only on the basis of policy results; the special needs rationale is dangerous.

In Marshall's opinion, although the urgency of needing to collect samples before the drug or alcohol disappeared from the body justified waiving the warrant requirement for collecting the evidence, there was no reason for railroad officials to not get a warrant before testing the samples.

Marshall found the majority's characterization of the privacy interests in this case as minimal, "nothing short of startling." The framers of our Constitution "would be appalled by the vision of mass governmental intrusions upon the integrity of the human body . . . 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 . . . "