{"id":69,"date":"2026-05-26T13:42:57","date_gmt":"2026-05-26T13:42:57","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=69"},"modified":"2026-05-26T13:42:57","modified_gmt":"2026-05-26T13:42:57","slug":"the-supreme-courts-drug-test","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=69","title":{"rendered":"The Supreme Court\u2019s drug test"},"content":{"rendered":"<div>\n<p>The Supreme Court is expected to rule soon in <em>United States v. Hemani<\/em>, a closely watched case addressing drug users\u2019 gun rights. When it does, the ruling will likely reignite not just the debate over how the court approaches the Second Amendment, but also the debate over how justices rule in cases involving drugs, and whether they apply a different standard in such cases.<\/p>\n<p>Read more <a href=\"https:\/\/americanservicereview.com\/?p=67\">Unending oral arguments<\/a><\/p>\n<p>That question has come up multiple times. It emerged about 20 years ago, after the court in <em>Gonzales v. Raich<\/em> held that Congress, under the Constitution\u2019s commerce clause, had the authority to criminalize personal, medical use of marijuana even in states where it was legal. As Anastasia Boden noted in an October 2025 SCOTUSblog column, the 6-3 ruling embraced an expansive view of federal power, and it was joined by justices who in other contexts had criticized the federal government\u2019s effort to use the commerce clause to regulate local activity.<\/p>\n<p>In particular, the <em>Raich<\/em> ruling led to a wave of commentary about whether at least some of the justices in the majority \u2013 most notably, Justices Antonin Scalia and Anthony Kennedy \u2013 were engaged in something of a war on drugs. In other words, court watchers questioned whether these justices were willing, in drug-related cases, to abandon their views on federalism or preferred methods of constitutional interpretation to ensure that drug users would lose.<\/p>\n<p>After Scalia\u2019s death in February 2016, Jacob Sullum revisited his record in such cases and analyzed whether Scalia actually deserved his reputation as an anti-drug crusader. Sullum argued that while Scalia did seem to be \u201cdriven by anti-drug fervor\u201d in some cases, he was not a blind supporter of the federal government\u2019s effort to end illegal drug use.<\/p>\n<p>For example, in multiple Fourth Amendment cases concerning the circumstances in which law enforcement officers may conduct a warrantless search, Scalia defended the privacy rights of drug users or dealers, arguing that officers must obtain a warrant before they use \u201cinfrared technology\u201d to search a home for heat patterns indicating indoor marijuana growth, attach a GPS device to an alleged dealer\u2019s car, or use a drug-sniffing dog on a home\u2019s doorstep. Scalia also wrote a fiery dissent in 1989\u2019s <em>National Treasury Employees Union v. Von Raab<\/em>, in which the court upheld the United States Custom Service\u2019s drug testing program, describing the service\u2019s rules for drug testing as \u201ca kind of immolation of privacy and human dignity in symbolic opposition to drug use.\u201d<\/p>\n<p>But in several\u00a0other, similar drug-related cases, Scalia sided with law enforcement officers or other government officials. This included , a major (and much criticized) free exercise case, in which Scalia penned the court\u2019s opinion allowing Oregon to deny unemployment benefits to two men who had been fired after ingesting peyote during a Native American Church ceremony.<\/p>\n<p>Sullum suggests that in <em>Raich<\/em>, specifically, it\u2019s difficult to square Scalia\u2019s vote with his stance in past cases unless you assume \u201cthat he shared the pharmacological phobias at the heart of the war on drugs.\u201d<\/p>\n<p>The <em>Raich<\/em> ruling also prompted a discussion of Kennedy\u2019s votes in drug-related cases, including by SCOTUSblog\u2019s Lyle Denniston. In a column about the ruling, Denniston observed that Kennedy\u2019s vote against the marijuana growers \u201cmay be baffling\u201d to those aware of \u201chis accustomed role in supporting state power against overreaching congressional legislation.\u201d But it\u2019s not that surprising, Denniston continued, if you consider Kennedy\u2019s low \u201ctolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures,\u201d which he had established \u2013 or at least hinted at \u2013 in previous drug-related cases.<\/p>\n<p>Indeed, Kennedy\u2019s (lack of) experience with drugs was a talking point during his confirmation process, because he was nominated after Douglas Ginsburg withdrew from consideration while facing intense scrutiny for admitting to using marijuana during the 1960s and 1970s. After he was announced as the replacement nominee, a reporter asked Kennedy if he had ever smoked marijuana. \u201cThe answer,\u201d Kennedy said, \u201cwas no, firmly no.\u201d<\/p>\n<p>After <em>Raich<\/em>, Denniston highlighted comments Kennedy made during oral argument in <em>Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls<\/em>, a 2002 case in which the court upheld a drug testing requirement for any public-school student seeking to take part in any extracurricular activity. Kennedy observed that \u201cit\u2019s hardly a revelation that the government is concerned about what drugs do to our culture. Not exactly rocket science.\u201d Kennedy went on to join the majority opinion by Justice Clarence Thomas.<\/p>\n<p>During a 2016 University of Chicago event titled \u201cThe Sweet Mystery of Anthony Kennedy,\u201d Ilya Shapiro briefly reflected on Kennedy\u2019s votes in drug-related cases, noting that he did not appear interested in defending the dignity of drug users (or people who did not use drugs but did not want to be subjected to drug testing) with the same urgency that he defended the dignity of others. \u201cThe only way to explain these votes is that Kennedy doesn\u2019t see any nobility in drugs, so their users merit little constitutional protection even if they don\u2019t hurt anybody and are confined to the privacy of the home,\u201d Shapiro said.<\/p>\n<p>Read more <a href=\"https:\/\/americanservicereview.com\/?p=63\">The Supreme Court and social media<\/a><\/p>\n<p>Still, Kennedy, like Scalia, did not always support anti-drug measures as a jurisprudential matter. For example, in <em>Safford Unified School District #1 v. Redding<\/em>, a 2009 case in which the court held that school officials violated the Fourth Amendment when they strip-searched a 13-year-old student suspected of possessing drugs, both Kennedy and Scalia were in the majority.<\/p>\n<p><strong>The current court on drugs<\/strong><\/p>\n<p>The current justices have faced less scrutiny over their approach to drug-related cases, although that may have more to do with when they joined the court than what they have said and written. Many of the court\u2019s highest-profile decisions in this area, including <em>Raich<\/em>, came between the late 1980s and early 2000s. Thomas joined the court in 1991, but no other current justice arrived before 2005.<\/p>\n<p>As for Thomas, he dissented in <em>Raich<\/em> and wrote separately to criticize the majority\u2019s view of federal power. The challengers in the case \u201cuse marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything\u2014and the Federal Government is no longer one of limited and enumerated powers,\u201d Thomas wrote.<\/p>\n<p>Thomas\u2019 overall record in drug-related cases is complicated. He was with Scalia in the majority in the cases barring warrantless searches of suspected drug users\u2019 homes with infrared technology and drug-detecting dogs, but dissented when the court later restricted the use of such dogs during traffic stops. And in <em>Redding<\/em>, Thomas concurred in part and dissented in part. He explained that he did not believe the challenged search violated the Fourth Amendment and emphasized that school officials should have broad authority \u201cto maintain discipline in their schools and ensure the health and safety of the students in their charge.\u201d<\/p>\n<p>Although Chief Justice John Roberts and Justice Samuel Alito disagreed with Thomas in <em>Redding<\/em>, they have often voted in support of public officials and law enforcement officers in cases involving drugs. For example, both justices would have allowed warrantless searches with drug-detecting dogs on doorsteps, and they joined with Thomas, Scalia, and Kennedy in <em>Morse v. Frederick<\/em>, the famous \u201cBong Hits 4 Jesus\u201d case, to hold that school officials did not violate the First Amendment when they confiscated a banner carrying that phrase and suspended a student who had refused to take it down. \u201c[W]e hold that schools may take steps to safeguard those entrusted to their case from speech that can reasonably be regarded as encouraging illegal drug use,\u201d Roberts wrote for the majority.<\/p>\n<p>Among the court\u2019s Republican-appointed justices, Justice Neil Gorsuch is perhaps the most likely candidate to rule against the government in cases involving drugs because of both his libertarian instincts and what The New York Times once described as his \u201crelatively moderate\u201d position on \u201cthe Fourth Amendment\u2019s protections against unreasonable searches.\u201d But, as noted above, the court\u2019s most notable cases involving drugs were decided before the latest justices joined the court, which explains why Gorsuch\u2019s \u2013 as well as Justices Brett Kavanaugh\u2019s and Amy Coney Barrett\u2019s \u2013 drug-related jurisprudence is still taking shape.<\/p>\n<p>Depending on how the court rules, <em>Hemani<\/em> may trigger a reassessment of the court\u2019s reputation in this area. The case centers on a federal law that prohibits gun possession by users of illegal drugs. Ali Danial Hemani, who was charged with violating it after he told FBI agents that he smoked marijuana about every other day, contends that the law violates his rights under the Second Amendment.<\/p>\n<p>Going into the <em>Hemani<\/em>\u00a0oral argument on March 2, it seemed likely that the discussion would include at least a few Kennedy-like observations about the dangers of illegal drug use. But as Amy Howe noted in her argument analysis, the court appeared to be more skeptical of the federal government\u2019s position than Hemani\u2019s, with several justices, including Thomas, raising concerns about the law\u2019s broad scope.<\/p>\n<p>At oral argument, the justices put forward a colorful array of hypothetical scenarios involving the use of THC gummies, anabolic steroids, sleeping pills, and psychedelics. For example, Gorsuch urged Principal U.S. Deputy Solicitor General Sarah Harris to explain why the government believes someone who takes a THC gummy every other night in a state where such gummies are legal is a habitual drug user who can be barred from possessing a gun. And Justice Elena Kagan asked Erin Murphy, who argued on behalf of Hemani, about whether someone using ayahuasca \u2013 which Kagan described as \u201ca very, very, very intense hallucinogen\u201d \u2013 could be prevented from having a gun even though it is not considered addictive and would not affect someone\u2019s behavior once the \u201cepisode\u201d is over. Barrett later sparked a burst of laughter in the courtroom when she referred back to Kagan\u2019s question and asked whether ayahuasca is a real drug.<\/p>\n<p>Although the justices stumbled at times over drug-related terms, they did not sound quite as judgmental as some of their predecessors.<\/p>\n<p>Read more <a href=\"https:\/\/americanservicereview.com\/?p=61\">Racial considerations in voting rights and immigration policy on the last day of oral argument<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>The Supreme Court is expected to rule soon in United States v. Hemani, a closely watched case addressing drug users\u2019 gun rights. When it does, the ruling will likely reignite not just the debate over how the court approaches the Second Amendment, but also the debate over how justices rule in cases involving drugs, and [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":68,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":["post-69","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-scotus-focus"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>The Supreme Court\u2019s drug test - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=69\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Supreme Court\u2019s drug test - American Service Review\" \/>\n<meta property=\"og:description\" content=\"The Supreme Court is expected to rule soon in United States v. 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