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Opinion analysis: Constitutional issue left open

Over two Justices’ harshly worded complaints, the Supreme Court ruled on Wednesday that there was no need now to settle a lingering constitutional question — do individuals have a right not to have information about their private lives disclosed by the government?  Upholding the validity of potentially intrusive questions on a federal government form used in background checks, the Court said it would assume — but not actually rule — that there is a constitutional right to “informational privacy.”  Even if it did exist, it was not violated in this case, the Court decided.

The two objecting Justices — Antonin Scalia and Clarence Thomas — said there is no such right, and the Court should say so now.  They dismissed the notion that such a right can be found in the Constitution as “absurd,” “silly,” “farcical,” and “ridiculous.”  To the other Justices’ conclusion that the Court was assuming without deciding the issue, the dissenters called the creation of such a mystery part of an “Alfred Hitchcock line of…jurisprudence.”

Writing for the Court in National Aeronautics and Space Administration v. Nelson, et al. (09-530), Justice Samuel A. Alito, Jr., said “the government has an interest in conducting basic employment background checks” to help ensure the security of its facilities.  “Courts,” the opinion added, “must keep those interests in mind when asked to go line-by-line through the government’s employment forms and to scrutinize the choice and wording of the questions they contain.”

The challenged questions on background-check questionnaires, the Court decided, are the kind of inquiries that the government, in its role as an employer, is entitled to ask.   Moreover, the Court added, the answers that those questions produced are protected from public disclosure by federal privacy law and regulations.

The ruling provided firm legal support for one of the steps that the federal government took in response to the terrorist attacks on Sept. 11, 2001.  The federal 9/11 Commission had urged the government to begin making background checks on those who work for federal contractors, just as it has for decades for the federal government’s own workforce.   Specifically at issue in this case were two questions on questionnaires that must be filled out by employees of California Institute of Technology, which has a long-term contract with NASA to operate its space program activities at the Jet Propulsion Laboratory in Pasadena.  Twenty-eight long-term Caltech employees filed the challenge, and won in a lower court.  NASA appealed, and has now won.

The bottom line of Wednesday’s ruling was that NASA may continue to insist that contractors’ employees answer questions about whether they have ever had treatment or counseling for drug abuse, and may continue to ask references given by those employees open-ended questions about whether they know anything about whether a given individual is suitable to work in a government-related job.   Eight Justices joined in upholding that outcome; Justice Elena Kagan, who had filed the appeal for NASA in her former role as U.S. Solicitor General, did not take part.

Among the eight Justices taking part, the case produced a lively debate — discussed blandly by Justice Alito for the Court, and in blustery words by Justice Scalia for himself and Justice Thomas — over the issue that was the strongest complaint in NASA’s appeal: the agency’s objection to the Ninth Circuit Court’s recognition of a constitutional right of “informational privacy.”  The Circuit Court found that the challenged questions violated that right.

The Supreme Court itself, in two decisions in 1977, had hinted that there may be just such a right in the Constitution, although it did not declare finally that the right did exist.  It had said little on the subject since then, leaving it largely to lower courts to sort out what the Supreme Court meant in the 1977 rulings.  One such court — the D.C. Circuit — had issued a ruling in 1997 voicing “grave doubts” that such a right existed, and saying flatly that, if it were the first to confront the issue, it would reject the claim to such a right.  It said the Justices’ 1977 decisions had raised the issue without settling it.  That should give lower courts pause, that Circuit Court said.

Justice Alito cited the same hesitancy in his NASA opinion, but did so mainly in a footnote that was written as a response to the Scalia complaint.   (Justice Thomas also wrote a separate, brief opinion, objecting to recognition of such a right of privacy.)   Alito said in the footnote that the Court should not act as a “self-directed board of legal inquiry and research.”   The two sides in this case did not put the existence of such a right directly at issue, Alito wrote, and it was “undesirable” for the Court “to decide an issue of this importance in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided.”   Although it was a subtle thrust, the Alito footnote cited a number of prior cases in which Justice Scalia had joined in the Court’s refusal to decide a constitutional question.

The Scalia-Thomas concurrence written by Scalia amounted to 12 pages of sarcasm and biting criticism of the claims of the Caltech employees, and ridicule of the Court for the way it had decided the case.   They warned that it would provoke a host of legal claims to such a right of “informational privacy” — a suggestion that Alito’s footnote answered with the comment that the Court was now taking the same cautious approach that the Court did in 1977, “and there is no evidence that those decisions have caused the sky to fall.”

On the space agency’s need to get answers to the challenged questions from contract employees, the Scalia-Thomas opinion commented acidly that NASA needs to ensure “that the Hubble Telescope is not used by recovering drug addicts.”

Recommended Citation: Lyle Denniston, Opinion analysis: Constitutional issue left open, SCOTUSblog (Jan. 19, 2011, 3:31 PM),