Over the course of a third of a century, the United States Supreme Court has been deciding “informational privacy” cases. Not many, just three in those 33 years. But here’s the strange thing. The Supreme Court has never held that a constitutional right to informational privacy exists. Yesterday’s decision in NASA v. Nelson is the latest iteration.
Here’s how they have done it in all three cases. “We assume without deciding” that there is a constitutional right to informational privacy. They then proceed to find that, assuming there is a constitutional right to informational privacy, the facts of the particular case wouldn’t violate that assumed right…if it exists.
Informational privacy has to do with the collection and dissemination of private information by the government. In yesterday’s case, the government ordered the employees of independent civilian contractors to undergo the same background checks as government employees at NASA’s Jet Propulsion Lab. This included a questionnaire as well as form letters sent to references. The responses, both from the contractor employees and the references, were protected from disclosure by the federal Privacy Act.
The Court’s decision written by Associate Justice Samuel Alito, in which six justices joined and two concurred, assumed the existence of a right to informational privacy, then determined that the Privacy Act provided sufficient protection that the assumed constitutional right was not violated. The concurring opinions, by Scalia and Thomas, agreed with the result but not the reasoning. Justice Kagan did not participate in the decision.
In his scathing concurrence Justice Scalia asks an interesting question. How can the Supreme Court decide whether a constitutional right has, or has not, been violated without first deciding whether the constitutional right exists?
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.