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Argument recap: Caution on privacy


Two perceptions emerged with clarity Tuesday from a complex Supreme Court argument about government demands for information about people’s private lives.  First, the Court is not going to follow Justice Antonin Scalia’s lead and remove all constitutional restraints on such demands.  Second, it was plain that only a good deal of bargaining from here on could settle just what restraint might remain.  Somewhat less clearly, the prospect arose that the Court in the end might find itself able to reach a very narrow ruling, leaving the full scope of “informational privacy” for another day.

Many of the Justices spent serious efforts during the one-hour argument in National Aeronautics and Space Administration v. Nelson, et al. (09-530) trying to determine just what the Constitution might say about the government’s authority to ask probing questions about highly personal and private matters — at least when it is asking them as an actual or potential employer of the individual being asked those questions.

There were, however, two Justices not joining in that pursuit.  Justice Scalia suggested that the effort was inherently flawed; he argued that the Constitution says nothing at all about that subject, and so any restraint should be left to legislators, not judges.  No one shared that view.  Justice Ruth Bader Ginsburg said the Court need not be making such a wide-ranging inquiry, since it was reviewing only a very specific and confined lower court decision restricting such questions.  But most of the other Justices said — as Justice Samuel A. Alito, Jr., did at one point — that the Court had to have “some idea about either the existence or the contours” of the constitutional right in order to decide when it was violated by government inquiry.

The Court three decades ago suggested that there was, indeed, a constitutional right to privacy that shields personal matters from government intrusion, but it has done little since then to define such a right or to say what limits such a right imposes on government prying.  From the opening moments of Tuesday’s hearing in the NASA case, it was obvious that some Justices thought this case might be a proper test of the scope of such “informational privacy.”

Acting Solicitor General Neal K. Katyal, in fact, had barely started his argument when Justice Sonia Sotomayor asked whether there are any limits on what questions the government may ask — and wondered specifically if it could inquire into a person’s “genetic makeup” to see if he or she was prone to some dread disease, like cancer.  She made it clear she was asking in the context of government questioning as an actual or potential employer.

Katyal tried energetically to avoid answering, saying this case did not require the Court to confront the breadth of such a right, but adding that there is no specific ruling by the Court imposing a definite limit on collection of private information so long as there were safeguards against making it public.  While insisting that the case involved a very narrow ruling by the Ninth Circuit Court, the government lawyer made it clear he wanted the Justices at least to scuttle the “reasoning” used by the Circuit Court, because it “could radiate very broadly” and undermine the government’s long-used authority to do background checks on employees and those working for government contractors.

Even if this case is narrow because of the terms of the Ninth Circuit’s preliminary restraint on the government contractor questionnaire, Katyal said, it is the next round of litigation he was worried about when other litigants challenge other forms of inquiry into the background of workers or contract employees.

Although — to Justice Scalia’s dismay — Katyal did indicate that the government was willing to have the Court assume there is a right of privacy that might be invoked against government questions into personal data, he urged the Court to continue to approach privacy issues with reticence.  He seemed unable to dissuade several of the Justices, including Anthony M. Kennedy, from continuing to explore just what the dimensions of that privacy right might be.  Ultimately, though, Katyal did say that, if the Court had to confront the question of whether such a right does exist, “our answer would be no.”

Chief Justice John  G. Roberts, Jr., seemed surprised at that ultimate position, wondering rhetorically whether whether there was any right at all for a citizen to tell the government that one’s personal data “is none of your business.”   The government attorney then back-tracked a bit, indicating that he was only talking about government authority to probe in its role as either employer or as “proprietor.”   And, responding to further question from Justice Alito, Katyal conceded that there would be constitutional limits on government inquiries that burdened “some other fundamental constitutional right” — for example, an inquiry into sexual practices.

Justice Scalia at that point reentered the argument, to make the point that, if limits were necessary, legislatures could impose those them rather than having courts do so. “It’s possible,” the Justice said, “that that’s the protection the Framers envisioned, rather than having courts ride herd on government inquiries.”

When the argument moved into the specifics of what NASA asks about the backgrounds of employees of its contractors, Katyal sought to show that the inquiries that most worried the Ninth Circuit Court had not actually led to much adverse action against contractors’ staff members.  Over the past five years, he said, only 128 individuals have been denied credentials to enter NASA facilities, and none of those denials resulted from responses to the challenged inquiries about drug treatment or counseling.

Shortly afterward, Justice Ginsburg returned to her attempt to shape a narrow ruling on NASA background checks, asking Katyal how the challenged questionnaire might be reworded to satisfy the Ninth Circuit.  The acting Solicitor General responded that it could not be done easily, because the breadth of the Circuit Court’s reasoning had gone to the heart of what all employers need to do as they check whether workers are “trustworthy and reliable.”

Arguing for the 28 scientists and engineers who challenged NASA’s background check process, Dan Stormer of Pasadena CA had to deal, in his opening, with Justice Scalia’s attempt to do away with any semblance of a constitutional right of information privacy.  But that turned out to be easy for Stormer compared with the difficulty he encountered as other members of the Court sought to draw him out on defining the privacy right he was advocating — a right, as he put it perhaps too imprecisely, “to control information about one’s self…without governmental intrusion.”

Justice Stephen G. Breyer was the most persistent questioner on the point, probing what kind of “liberty” under the Fifth Amendment’s due process clause was said to be at stake.  He wondered whether, every time the government asked for any information from a citizen, it could be challenged in court and would have to justify every such inquiry.

Stormer eased off somewhat from his demand for a higher constitutional bar to government inquiries into personal matters, suggesting that only a “rational basis” test might be required for inquiries such as a Social Security number.  That did not help his cause, and neither did his broad suggestion that “any intrusion into private lives” would have to have…a governmental need.”

Justice Sotomayor remarked: “I think what Justice Breyer is getting to and that I’m trying to figure out is, you’ve used the word ‘privacy.”  What does privacy relate to?”  Soon, Justice Breyer was almost pleading with Stormer: “So how do we decide?  I am a little interested, if you could spend two or three minutes elaborating this….How does it work, the system, distinguishing one [inquiry]from the other?”  Stormer ran through a series of Supreme Court decisions about protections for fundamental rights, such as procreation, marriage, sexual relations and family relations.

Stormer made a studied effort to try to diminish any concern the Court might have that the NASA contract employees he represents posed security risks that NASA had a right to check up on.  NASA, he said, was aiming its background checks even at “the snack bar worker, the bus driver, the gift shop operator.”  That did not dissuade Justice Alito, who wondered why NASA should not be allowed to obtain information that a gift shop or snack bar employee had a sign in their yard saying “I hope the space shuttle blows up.”  (The NASA facility in Pasadena involved in this case has a role in the space program, but not with the shuttles.)  Stormer conceded that “the government should know that information.”

There was no way, Alito countered, that the government could find out such information unless it, in fact, used “open-ended” questionnaires of the very kind that Stormer’s clients (and the Ninth Circuit) found objectionable.

Some of the Justices were growing exasperated.  The Chief Justice remarked: “I would like to get back to Justice Breyer’s question.  So now you not only have to decide which questions — they can challenge any question they want and say, this isn’t pertinent, but you also have to categories which employees are being asked that question….You know, it’s a big government, and they can’t tailor every inquiry, every form, to the individual applicant.”

Scalia was even more dismissive.  “We can handle those details.  My goodness, it’s all right there in the Constitution. And we can decide what employees have to know what, and what questions you can ask them, and how much privacy is too much privacy, right?  It’s a piece of cake.”

Scalia, of course, was using sarcasm to reiterate his point that the Court should steer clear of this area altogether.  But his point might also be an implied suggestion to the other Justices that, if they are going to move into this thicket, they should do so with caution and special care.  It was, in short, a plea at least for the kind of narrow ruling that Justice Ginsburg was so persistently suggesting.