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Wednesday, October 06, 2010

NASA v. Nelson Oral Argument Aftermath - What Will Justice Scalia Do?

The Supreme Court heard oral argument in NASA v. Nelson yesterday, its first constitutional right to information privacy case in a generation.  The oral argument transcript is here, and SCOTUSBlog has a write-up here.  I analyzed the case earlier here.  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.  In this post and a follow-up, I want to highlight some of the interesting issues that emerged in oral argument and suggest ways that some of the justices ought to go, given their apparent inclinations.

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.  In oral argument, Justice Scalia asked counsel why not simply let Congress decide what sorts of limits ought to constrain the government.  Counsel for Nelson never offered a good answer to this question.  Indeed, as I argued in an earlier post, there are sound reasons to believe that the Federal Tort Claims Act already constrains the sorts of questions that the government can ask as part of the security clearance process.  Constitutional protections seem to represent a belt and suspenders approach for reasons analyzed   For reasons explained in this paper, I think the approach to Nelson suggested by Justice Scalia's questioning is persuasive.

Justice Scalia was active in questioning, but he did fail to go for the jugular after hearing an answer offered by Neal Katyal, who argued the case for the government.   Justice Scalia noted the bizarre nature of Whalen and Nixon, in which the Court assumed, arguendo, that a constitutional right exists before holding that the right was not violated by the government's conduct.  Justice Scalia observed that this is rarely the approach the Court takes and wondered why the constitutional right to information privacy should be any different.  To take a recent example of this question, consider the recent Supreme Court case of Stop the Beach Renourishment, where Justice Scalia's plurality opinion held that there is such a thing as a judicial taking, but also held that the actions of the Florida courts did not amount to a judicial taking.  (Justice Breyer's approach in Stop the Beach Renourishment was to follow the Whalen/Nixon tack - reserving judgment on the question of whether the Constitution proscribes judicial takings).  Katyal stated that the "arguendo" approach made particular sense in the privacy context, where rapid technological developments mean the rules governing privacy should change frequently.  This was Katyal's weakest answer in an otherwise efffective oral argument.  How come?

The implication of making doctrine in an area where the technology is frequently causing norms and law to shift is that this body of law is a poor candidate for constitutionalization.  The Constitution is hard to change, whereas legislation and common law are easy to change.  So if it's really the case that we are dealing with a body of law that is likely to remain in flux, and will therefore need continual updating, an additional powerful argument for Scalia's approach exists.  (Katyal seemed to adopt Scalia's approach as a fallback position, though his main tack was to convince the Court to maintain its ambiguity about whether the Constitution protects a right to information privacy.)

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.  I will have some more thoughts on how that might be done in my next post.

Update: A very helpful reader has made me reconsider my conclusion that on the facts of Nelson, the plaintiffs could prevail under the FTCA.  I now think that's wrong, given 28 USC 2680(a).  See, e.g., Welch v. United States, 409 F.3d 646, 652-54 (4th Cir. 2005).  Suing under a tort theory will work in many states, and it will work where the federal government is acting contrary to its own policies, and tort causes of action will be good substitutes for many claims currently brought under the constitutional right to information privacy, but they won't form a sound basis for challenging government background checks in Nelson.  My error will be corrected before the law review article goes to press.

Posted by Lior Strahilevitz on October 6, 2010 at 10:45 AM in Constitutional thoughts | Permalink

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