In NASA v. Nelson, the Supreme Court, by a vote of 8-0 (Justice Kagan recused), reversed the 9th Circuit. While the Court assumed that the Constitution protects some sort of right to informational privacy, as articulated in Whalen, the Court found that the questions asked by the Government are permissible and do not violate this right.
We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violatethis right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605.
There are concurring opinions by Justice Scalia and by Justice Thomas.
More analysis as I read further.
Justice Scalia, joined by Justice Thomas, concur in judgment, and find that no constitutional right ot information privacy exists.
Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at thefederal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.
Scalia, focusing on the fact that this right is unenumerated, notes that Respondents do not identify which provision of the Constitution protects the right to informational privacy.
Respondents’ brief, in arguing that the Federal Government violated theConstitution, does not once identify which provision ofthe Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law, such as two reports of theGovernment Accountability Office and an EEOC document concerning “Enforcement Guidance.” And yet it containsnot a single citation of the sole document we are calledupon to construe: the Constitution of the United States
Scalia appreciates this approach, finding a certain intellectual honesty.
To tell the truth, I found this approach refreshinglyhonest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.
However, at arguments counsel relied on the “substantive” components of the 5th Amendment. Scalia, then proceeds to rip apart substantive due process.
That counsel invoked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented. This case is easily resolved on the simple ground that the Due Process Clause does not “guarante[e] certain(unspecified) liberties”; rather, it “merely guarantees certain procedures as a prerequisite to deprivation of liberty.” Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring). Respondents make no claim that the State has deprived them of liberty without the requisite procedures, and their due process claim therefore must fail. . . . Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.
I shall not fill the U. S. Reports with further explanation of the incoherence of the Court’s “substantivedue process” doctrine in its many manifestations, since the Court does not play the substantive-due-process card.Instead, it states that it will “assume, without deciding” that there exists a right to informational privacy, ante, at 1.
I would be remiss if I did not remind my readers that even Scalia acquiesced with substantive due process in McDonald v. Chicago in order to incorporate the 2nd Amendment through the due process clause. Scalia spent nary a paragraph in McDonald explaining his seemingly contradictory positions. I’m disappointed his frugality for the pages in the U.S. Report deny us this opportunity.
Scalia, citing the Glucksberg “deeply rooted” test finds that such a right to informational privacy is not deeply rooted.
Respondents do not even attempt to argue that the claim at issue in this case passes that test, perhaps recognizing the farcical nature of a contention that a right deeplyrooted in our history and tradition bars the Government from ensuring that the Hubble Telescope is not used by recovering drug addicts.
Justice Thomas has a sharp one paragraph concurrence that reaffirms his McDonald opposition to substantive due process, and jabs Justice Scalia quite sharply:
I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissenting) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring of unenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).
More to come.