(CN) – NASA can subject government contractors to background checks without violating the so-called constitutional right to privacy, the Supreme Court ruled on Wednesday. In a separate, concurring opinion, Justice Antonin Scalia wrote that the right does not actually exist, and, while the government contractors’ claim still fails, “it is past time for the court to abandon this Alfred Hitchcock line of our jurisprudence.”
The lawsuit stems from President George W. Bush’s decision to require mandatory background checks for all federal employees, including contract workers.
As an October 2007 deadline loomed for compliance with the new regulation, NASA modified its contract with the California Institute of Technology to reflect the new background-check requirement.
The Jet Propulsion Laboratory in Pasadena, Calif., which is government owned and Cal Tech operated, is staffed exclusively by contract employees. It is the lead NASA center for deep-space robotics and communications.
Cal Tech said it would fire any employees who failed to complete the National Agency Check with Inquiries, which has long been the standard background investigation for prospective civil servants, by October 2007.
Many of the lab’s employees have worked at the lab for decades without ever needing to submit to a background investigation.
In a lawsuit against NASA, 28 of the lab’s workers complained that two parts of the investigation violate their constitutional privacy rights, citing a section of a form questionnaire that asks employees about treatment for recent illegal-drug use and open-ended questions on a form sent to their preselected references.
The background check is the same given to any federal employee who works in a nonsensitive position, which is how the government classifies the 28 plaintiffs. The questionnaire asks about basic biographical information, citizenship status and military service history.
The last section inquires about illegal drugs use in the last year, and respondents must provide additional information, including whether they have received counseling or treatment, if they answer yes.
Another part of the investigation is a form questionnaire sent to the employee’s references, including former employers, schools and landlords.
The answers to the questions are mostly confidential and cannot be used in any criminal proceedings.
A federal appeals panel of the 9th Circuit granted the workers an injunction, finding that the challenged sections of the background check would likely be unconstitutional. In 2009, the appellate’s full court voted to deny rehearing en banc, and the Supreme Court took up the case in 2010.
“The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers,” Justice Samuel Alito wrote in the court’s majority opinion. “The government itself has been conducting employment investigations since the earliest days of the republic.”
Thomas also authored a separate, paragraph-long concurring opinion. Justice Elena Kagan did not participate in any part of the consideration or decision of the case.
Alito found that while the workers said they should face less managerial force from the government since they are not civil servants, their employment relationship does not change the government’s interest in their histories.
“At JPL [the Cal Tech lab], in particular, the work that contract employees perform is critical to NASA’s mission,” Alito wrote. “The government has good reason to ask employees about their recent illegal-drug use. Like any employer, the government is entitled to have its projects staffed by reliable, law-abiding persons who will ‘efficiently and effectively’ discharge their duties. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics.”
Alito added that the questions about drug treatment are appropriate in context.
“This is a reasonable, and indeed a humane, approach, and respondents do not dispute the legitimacy of the government’s decision to use drug treatment as a mitigating factor in its contractor credentialing decisions,” the opinion states.
Open-ended questions are also appropriate for references, who “do not have all day to answer a laundry list of specific questions,” Alito wrote.
In Scalia’s concurring opinion, joined by Justice Clarence Thomas, he wrote that the court came to the correct conclusion in overturning the injunction, but it took an unnecessary detour deliberating over a hypothetical violation of a hypothetical constitutional right.
“A federal constitutional right to ‘informational privacy’ does not exist,” Scalia wrote.
The justice pointed out that the workers’ brief does not even attempt to identify which provision of the Constitution it is trying to protect. Instead it calls upon rulings from state and federal courts, laws, executive orders, and congressional reports.
The sole reference to the Constitution in the brief, Scalia points out, is a “fleeting reference to the Due Process Clause, buried in a citation of the assuredly inapposite Lawrence v. Texas.”
Scalia did not hold back in the sardonic 10-page opinion.
“To tell the truth, I found this approach refreshingly honest,” the minority opinion states. “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.”
In trying to tie the claim to the Due Process Clause, which the workers’ counsel apparently attempted to do in oral arguments, the contractors sank their argument.
“That counsel invoked the infinitely plastic concept of ‘substantive’ due process does not make this constitutional theory any less invented,” Scalia wrote. “Respondents make no claim that the state has deprived them of liberty without the requisite procedures, and their due process claim therefore must fail.”
Scalia added that the court is not helping itself in considering the right to informational “privacy while coyly noting that the right is ‘assumed’ rather than ‘decided.'”
“Thirty-three years have passed since the court first suggested that the right may, or may not, exist,” the minority opinion states. “It is past time for the court to abandon this Alfred Hitchcock line of our jurisprudence.”
“It harms our image, if not our self-respect, because it makes no sense,” the justice added. “The court decides that the government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated.”
Scalia said Wednesday’s ruling, though not affirmative of the claim, will only increase the number of privacy lawsuits.
“Moreover, the utter silliness of respondents’ position in this case leaves plenty of room for the possible success of future claims that are meritless, but slightly less absurd,” he wrote. “This plaintiff’s claim has failed today, but the court makes a generous gift to the plaintiff’s bar.”