NASA v. Nelson and Public Employee Informational Privacy

4United States Supreme Court 112904 Yesterday, the United States Supreme Court heard oral argument in the public employee informational privacy case of NASA v. Nelson (oral tanscript here). Rather than reinvent the wheel on this one, I want to direct reader’s to Prof. Lior Strahilevitz’s (Chicago Law) excellent analysis of the oral argument on PrawfsBlawg.

Here are some highlights: 

Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .

Justice Scalia’s approach to the case seems fairly straightforward.  Justice Scalia believes on originalist grounds that the Constitution does not protect a constitutional right to information privacy.  He — and the other justices — recognized that the two 1970s Supreme Court decisions invoked by the plaintiffs — Whalen and Nixon — do not squarely hold that the Constitution protects such a right.  Scalia would therefore answer the open constitutional question and hold that limitations on the government’s ability to ask its employees and job applicants questions do not arise under the Constitution . . . .

Chief Justice Roberts did not seem particularly interested in Justice Scalia’s approach to Nelson.  So my hunch is that the Scalia approach ultimately wins over just his own vote and that of Justice Thomas, along with perhaps Justice Alito.  (Justice Alito asked one question that followed Scalia’s lead, but most of his questions went in other directions.)  With Justice Kagan recused, it is possible that five or six of the remaining justices will favor an approach that maintains ambiguity about the existence of the constitutional right but holds that NASA has not violated such a right even if it exists.  That would require the other justices to develop a framework for determining when the Constitution is violated.

While Lior finds Justice Scalia’s analysis persuasive, I am not similarly persuaded. I think the right of privacy previously recognized in other constitutional contexts also can be seen to include a right to informational privacy.

As to the scope of that right and how constitutional violations should be determined, I would suggest a balancing of interest approach that the Court has already established in both the Pickering First Amendment speech context and the Quon/Ortega Fourth Amendment privacy context.  Indeed, in a previous paper, I have argued that where rights under the substantive due process clause have been violated (as in Lawrence v. Texas), the Court should adopt a balancing test to balance the public employee’s right to privacy against the government’s interest in running an efficient government service.

I agree with Lior that Justice Scalia will not have more than three votes and that may lead to a very splintered decision since Justice Kagan has recused herself. Maybe something like 3-2-3, with the issue of a whether a constitutional right to privacy exists not being decided (think of the Court’s analysis in Quon in this regard).

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