In NASA v. Nelson, Justice Alito writing for 6 Justices found that “We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon.” This confuses me. Either a right exists, or it does not exist.. This seems to put the cart before the horse. Why bother considering a right if you don’t define it and recognize that it exists. Justice Scalia is also unpersuaded by this reasoning.

Perhaps Alito would reply that it is better to assume a right exists. Perhaps, he would argue there may well be circumstances in which the right exists. There may be circumstances in which the government violates the Constitution by demanding or disclosing private info. The more prudent path is to not foreclose it.

This answer is too pragmatic for me. Either a right exists, or it does not exist. This isn’t a case-by-case analysis. While the application of a right can vary based on the circumstances, its existence cannot. Perhaps the right does not apply in this case. but Alito is skipping the antecedent question whether it is actually a right! If there are no circumstances under which a right can be violated, I would agree that it is not a right. If there are some circumstances under which a right can be violated (as Alito suggested), then it must be a right! There is no in-between.

What I think lies at the heart of this 7-member bloc is a compromise. I would be willing to wager that Alito and Roberts do not think this is a right at all. There were not 5 votes to hold that this right does not exist, so the crafty Chief decided to simply acknowledge that this right could exist, but not apply here. This kept the liberal bloc at bay, and let his choice-author, Alito, put his imprimatur on this area. This mirrors the approach taken in Stop The Beach, where the Court decided that a judicial taking did not occur, without actually defining if a judicial taking exists.