Scalia and Thomas’ Substantive Due Process Standoff from McDonald v. Chicago Continues in NASA v. Nelson

January 19th, 2011

McDonald v. Chicago left us with a constitutional cliff-hanger. Justice Scalia, long an enemy of substantive due process, joined the plurality’s opinion, and recognized that the Second Amendment is incorporated through the due process Clause. He rationalized that he has previously acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” Albright v. Oliver 510 U. S. 266275 (1994) (Scalia, J., concurring). Justice Thomas did not join the plurality, and eschewed any reliance on the doctrine of substantive due process. He reasoned that he could not “accept a theory of constitutional interpretation that rests on such tenuous footing.” Rather, he relied on the Privileges or Immunities Clause of the 14th Amendment to the states. How would Scalia reply in the next case?

The substantive due process standoff continued today in NASA v. Nelson.

This case considered whether the Constitution protects a right to “informational privacy,” such that the government cannot ask certain open-ended questions on a background application. The majority opinion, authored by Justice Alito,”assume[d], without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon.” However, “that the challenged portions of the Government’s background check do not violate this right in the present case.”

In a lengthy footnote-paen to judicial moderation, Alito addresses the concerns of Scalia and Thomas, finding “sound reasons for eschewing the concurring opinions’ recommended course.” Alito writes that in “this case, petitioners did not ask us to hold that there is no constitutional right to informational privacy, and respondents and their amici thus understandably refrained from addressing that issue in detail.” Alito declines to “decide a matter of this importance in a case 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.” Alito cites a number of opinions joined by Scalia where the Court declined to recognize new substantive due process rights. In closing, the Court “therefore decide[s] the case before us and leave[s] broader issues for another day.”

Scalia disagrees with this faux-restraint, arguing that “by substituting for one real constitutional question(whether there exists a constitutional right to informa-tional privacy) a different constitutional question (weather NASA background checks would contravene a right to informational privacy if such a right existed), the Court gets to pontificate upon a matter that is none of itsbusiness: the appropriate balance between security and privacy.” Scalia finds that this is “judicial maximalism.” [A quick search of the ALLFEDS find that this is the first instance of the word “maximalism” in a judicial opinion.]

If I had to guess, this was Alito’s way of keeping the liberal justices on board. A nice unanimous opinion finding nothing, but foreclosing nothing, seems to fit into the Chief’s M.O. As in McDonald, we see the Chief assigning an important opinion to Alito. This seem to be a developing trend.

Justices Scalia, joined by Justice Thomas wrote a concurring opinion in judgment only.

Scalia found that though “it seems like a good idea,” “[a] federal constitutional right to “informational privacy” does not exist.” In their briefs, Respondent did not provide “a single citation of the sole document we are called upon to construe: the Constitution of the United States.” Scalia found “this approach refreshingly honest.” “One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pre-tense of tying it to some words of the Constitution.”

Citing his concurring opinion in Albright v. Oliver, the same opinion he relied on in McDonald, Scalia writes “[t]his 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).

Next, Scalia turns to substantive due process, noting that during oral argument, Counsel contended that “the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment.” “That counsel invoked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented.

Scalia, finds that even under the Glucksberg “deeply rooted” test, a right to informational privacy is not protected. “at issue in this case passes that test, perhaps recognizing the farcical nature of a contention that a right deeply rooted in our history and tradition bars the Government from ensuring that the Hubble Telescope is not used by recovering drug addicts”

Scalia concludes, by refraining from “fill[ing] the U. S. Reports with further explanation of the incoherence of the Court’s “substantive due process” doctrine in its many manifestations, since the Court does not play the substantive-due-process card.” Scalia closes with, of course, a quote of Mabury. “Because I deem it the ‘duty of the judicial department tosay what the law is,’ Marbury v. Madison, 1 Cranch 137, 177 (1803), I concur only in the judgment.”

Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.

Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.

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., dissent-ing) (“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. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).

What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.

The standoff continues.