NATIONAL AERONAUTICS AND SPACE ADMINISTRATION v. NELSON
A 2004 Bush administration antiterrorism initiative extended background checks required for many government jobs to contract employees, including scientists and engineers at the Jet Propulsion Laboratory, a research facility operated by the California Institute of Technology under a contract with NASA. Twenty- eight lab employees, who do not have security clearances and are not involved in classified or military activities, filed suit over what they considered to be overly intrusive background checks. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the background checks halted while the case continued. The divided court later declined an en banc review.
Does the government violate a federal contract employee's constitutional right to privacy by asking her whether she has received counseling or treatment for recent illegal drug use in the past year, or by asking her references if they have any reason to believe she is unsuited to work in a federal facility?
Legal provision: Right to privacy
No. The court reversed the lower court decision and upheld the background checks that NASA uses for employees of companies working under contract in an opinion by Justice Samuel Alito. Justice Antonin Scalia wrote a concurring opinion, which was joined by Justice Clarence Thomas. Justice Thomas also filed his own concurring opinion. Justice Elena Kagan did not participate in the consideration or decision of the case.
OPINION OF THE COURT
NASA V. NELSON
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, et al., PETITIONERS v. ROBERT M. NELSON et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 19, 2011]
Justice Alito delivered the opinion of the Court.
In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599–600 (1977); Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977). Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights under Whalen and Nixon. Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees’ designated references.
We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605.
The National Aeronautics and Space Administration (NASA) is an independent federal agency charged with planning and conducting the Government’s “space activities.” Pub. L. 111–314, §3, 124 Stat. 3333, 51 U. S. C. §20112(a)(1). NASA’s workforce numbers in the tens of thousands of employees. While many of these workers are federal civil servants, a substantial majority are employed directly by Government contractors. Contract employees play an important role in NASA’s mission, and their duties are functionally equivalent to those performed by civil servants.
One NASA facility, the Jet Propulsion Laboratory (JPL) in Pasadena, California, is staffed exclusively by contract employees. NASA owns JPL, but the California Institute of Technology (Cal Tech) operates the facility under a Government contract. JPL is the lead NASA center for deep-space robotics and communications. Most of this country’s unmanned space missions—from the Explorer 1 satellite in 1958 to the Mars Rovers of today—have been developed and run by JPL. JPL scientists contribute to NASA earth-observation and technology-development projects. Many JPL employees also engage in pure scientific research on topics like “the star formation history of the universe” and “the fundamental properties of quantum fluids.” App. 64–65, 68.
Twenty-eight JPL employees are respondents here. Many of them have worked at the lab for decades, and none has ever been the subject of a Government background investigation. At the time when respondents were hired, background checks were standard only for federal civil servants. See Exec. Order No. 10450, 3 CFR 936 (1949–1953 Comp.). In some instances, individual contracts required background checks for the employees of federal contractors, but no blanket policy was in place.
The Government has recently taken steps to eliminate this two-track approach to background investigations. In 2004, a recommendation by the 9/11 Commission prompted the President to order new, uniform identification standards for “[f]ederal employees,” including “contractor employees.” Homeland Security Presidential Directive/HSPD–12—Policy for a Common Identification Standard for Federal Employees and Contractors, Public Papers of the President, George W. Bush, Vol. 2, Aug. 27, p. 1765 (2007) (hereinafter HSPD–12), App. 127. The Department of Commerce implemented this directive by mandating that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI). National Inst. of Standards and Technology, Personal Identity Verification of Federal Employees & Contractors, pp. iii–vi, 1–8, 6 (FIPS PUB 201–1, Mar. 2006) (hereinafter FIPS PUB 201–1), App. 131–150, 144–145.[Footnote 1]
An October 2007 deadline was set for completion of these investigations. Memorandum from Joshua B. Bolten, Director, OMB, to the Heads of all Departments and Agencies (Aug. 5, 2005), App. 112. In January 2007, NASA modified its contract with Cal Tech to reflect the new background-check requirement. JPL management informed employees that anyone failing to complete the NACI process by October 2007 would be denied access to JPL and would face termination by Cal Tech.
The NACI process has long been the standard background investigation for prospective civil servants. The process begins when the applicant or employee fills out a form questionnaire. Employees who work in “non-sensitive” positions (as all respondents here do) complete Standard Form 85 (SF–85). Office of Personnel Management (OPM), Standard Form 85, Questionnaire for Non-Sensitive Positions, App. 88–95.[Footnote 2]
Most of the questions on SF–85 seek basic biographical information: name, address, prior residences, education, employment history, and personal and professional references. The form also asks about citizenship, selective-service registration, and military service. The last question asks whether the employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. Id., at 94. If the answer is yes, the employee must provide details, including information about “any treatment or counseling received.” Ibid. A “truthful response,” the form notes, cannot be used as evidence against the employee in a criminal proceeding. Ibid. The employee must certify that all responses on the form are true and must sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation.
Once a completed SF–85 is on file, the “agency check” and “inquiries” begin. 75 Fed. Reg. 5359 (2010). The Government runs the information provided by the employee through FBI and other federal-agency databases. It also sends out form questionnaires to the former employers, schools, landlords, and references listed on SF–85. The particular form at issue in this case—the Investigative Request for Personal Information, Form 42—goes to the employee’s former landlords and references. Ibid.[Footnote 3]
Form 42 is a two-page document that takes about five minutes to complete. See ibid. It explains to the reference that “[y]our name has been provided by” a particular employee or applicant to help the Government determine that person’s “suitability for employment or a security clearance.” App. 96–97. After several preliminary questions about the extent of the reference’s associations with the employee, the form asks if the reference has “any reason to question” the employee’s “honesty or trustworthiness.” Id., at 97. It also asks if the reference knows of any “adverse information” concerning the employee’s “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid. If “yes” is checked for any of these categories, the form calls for an explanation in the space below. That space is also available for providing “additional information” (“derogatory” or “favorable”) that may bear on “suitability for government employment or a security clearance.” Ibid.
All responses to SF–85 and Form 42 are subject to the protections of the Privacy Act. The Act authorizes the Government to keep records pertaining to an individual only when they are “relevant and necessary” to an end “required to be accomplished” by law. 5 U. S. C. §552a(e)(1). Individuals are permitted to access their records and request amendments to them. §§552a(d)(1),(2). Subject to certain exceptions, the Government may not disclose records pertaining to an individual without that individual’s written consent. §552a(b).
About two months before the October 2007 deadline for completing the NACI, respondents brought this suit, claiming, as relevant here, that the background-check process violates a constitutional right to informational privacy. App. 82 (Complaint for Injunctive and Declaratory Relief).[Footnote 4] The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit granted an injunction pending appeal, 506 F. 3d 713 (2007), and later reversed the District Court’s order. The court held that portions of both SF–85 and Form 42 are likely unconstitutional and should be preliminarily enjoined. 512 F. 3d 1134, vacated and superseded, 530 F. 3d 865 (2008).
Turning first to SF–85, the Court of Appeals noted respondents’ concession “that most of the questions” on the form are “unproblematic” and do not “implicate the constitutional right to informational privacy.” 530 F. 3d, at 878. But the court determined that the “group of questions concerning illegal drugs” required closer scrutiny. Ibid. Applying Circuit precedent, the court upheld SF–85’s inquiries into recent involvement with drugs as “necessary to further the government’s legitimate interest” in combating illegal-drug use. Id., at 879. The court went on to hold, however, that the portion of the form requiring disclosure of drug “treatment or counseling” furthered no legitimate interest and was thus likely to be held unconstitutional. Ibid.
Form 42, in the Court of Appeals’ estimation, was even “more problematic.” Ibid. The form’s “open-ended and highly private” questions, the court concluded, were not “narrowly tailored” to meet the Government’s interests in verifying contractors’ identities and “ensuring the security of the JPL.” Id., at 881, 880. As a result, the court held, these “open-ended” questions, like the drug-treatment question on SF–85, likely violate respondents’ informational-privacy rights.[Footnote 5]
Over the dissents of five judges, the Ninth Circuit denied rehearing en banc. 568 F. 3d 1028 (2009). We granted certiorari. 559 U. S. ___ (2010).
As noted, respondents contend that portions of SF–85 and Form 42 violate their “right to informational privacy.” Brief for Respondents 15. This Court considered a similar claim in Whalen, 429 U. S. 589, which concerned New York’s practice of collecting “the names and addresses of all persons” prescribed dangerous drugs with both “legitimate and illegitimate uses.” Id., at 591. In discussing that claim, the Court said that “[t]he cases sometimes characterized as protecting ‘privacy’ ” actually involved “at least two different kinds of interests”: one, an “interest in avoiding disclosure of personal matters”;[Footnote 6] the other, an interest in “making certain kinds of important decisions” free from government interference.[Footnote 7] The patients who brought suit in Whalen argued that New York’s statute “threaten[ed] to impair” both their “nondisclosure” interests and their interests in making healthcare decisions independently. Id., at 600. The Court, however, upheld the statute as a “reasonable exercise of New York’s broad police powers.” Id., at 598.
Whalen acknowledged that the disclosure of “private information” to the State was an “unpleasant invasion of privacy,” id., at 602, but the Court pointed out that the New York statute contained “security provisions” that protected against “public disclosure” of patients’ information, id., at 600–601. This sort of “statutory or regulatory duty to avoid unwarranted disclosures” of “accumulated private data” was sufficient, in the Court’s view, to protect a privacy interest that “arguably ha[d] its roots in the Constitution.” Id., at 605–606. The Court thus concluded that the statute did not violate “any right or liberty protected by the Fourteenth Amendment.” Id., at 606.
Four months later, the Court referred again to a constitutional “interest in avoiding disclosure.” Nixon, 433 U. S., at 457 (internal quotation marks omitted). Former President Nixon brought a challenge to the Presidential Recordings and Materials Preservation Act, 88 Stat. 1695, note following 44 U. S. C. §2111, a statute that required him to turn over his presidential papers and tape recordings for archival review and screening. 433 U. S., at 455–465. In a section of the opinion entitled “Privacy,” the Court addressed a combination of claims that the review required by this Act violated the former President’s “Fourth and Fifth Amendmen[t]” rights. Id., at 455, and n. 18, 458–459. The Court rejected those challenges after concluding that the Act at issue, like the statute in Whalen, contained protections against “undue dissemination of private materials.” 433 U. S., at 458. Indeed, the Court observed that the former President’s claim was “weaker” than the one “found wanting . . . in Whalen,” as the Government was required to return immediately all “purely private papers and recordings” identified by the archivists. Id., at 458–459. Citing Fourth Amendment precedent, the Court also stated that the public interest in preserving presidential papers outweighed any “legitimate expectation of privacy” that the former President may have enjoyed. Id., at 458 (citing Katz v. United States, 389 U. S. 347 (1967); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 (1967); and Terry v. Ohio, 392 U. S. 1 (1968)).[Footnote 8]
The Court announced the decision in Nixon in the waning days of October Term 1976. Since then, the Court has said little else on the subject of an “individual interest in avoiding disclosure of personal matters.” Whalen, supra, at 599; Nixon, supra, at 457. A few opinions have mentioned the concept in passing and in other contexts. See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762–763 (1989); New York v. Ferber, 458 U. S. 747, 759, n. 10 (1982). But no other decision has squarely addressed a constitutional right to informational privacy.[Footnote 9]
As was our approach in Whalen, we will assume for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance. 429 U. S., at 599, 605.[Footnote 10] We hold, however, that, whatever the scope of this interest, it does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure.
As an initial matter, judicial review of the Government’s challenged inquiries must take into account the context in which they arise. When the Government asks respondents and their references to fill out SF–85 and Form 42, it does not exercise its sovereign power “to regulate or license.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). Rather, the Government conducts the challenged background checks in its capacity “as proprietor” and manager of its “internal operation.” Ibid. Time and again our cases have recognized that the Government has a much freer hand in dealing “with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 598 (2008); Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). This distinction is grounded on the “common-sense realization” that if every “employment decision became a constitutional matter,” the Government could not function. See Connick v. Myers, 461 U. S. 138, 143 (1983); see also Bishop v. Wood, 426 U. S. 341, 350 (1976) (“The Due Process Clause . . . is not a guarantee against incorrect or ill-advised personnel decisions”).
An assessment of the constitutionality of the challenged portions of SF–85 and Form 42 must account for this distinction. The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies … perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262–263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”). Since 1871, the President has enjoyed statutory authority to “ascertain the fitness of applicants” for the civil service “as to age, health, character, knowledge and ability for the employment sought,” Act of Mar. 3, 1871, Rev. Stat. §1753, as amended, 5 U. S. C. §3301(2), and that Act appears to have been regarded as a codification of established practice.[Footnote 11] Standard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953. Exec. Order No. 10450, 3 CFR 936. And the particular investigations challenged in this case arose from a decision to extend that requirement to federal contract employees requiring long-term access to federal facilities. See HSPD–12, at 1765, App. 127; FIPS PUB 201–1, at iii–vi, 1–8, App. 131–150.
As this long history suggests, the Government has an interest in conducting basic employment background checks. Reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable workforce. See Engquist, supra, at 598–599. Courts must keep those interests in mind when asked to go line-by-line through the Government’s employment forms and to scrutinize the choice and wording of the questions they contain.
Respondents argue that, because they are contract employees and not civil servants, the Government’s broad authority in managing its affairs should apply with diminished force. But the Government’s interest as “proprietor” in managing its operations, Cafeteria & Restaurant Workers, supra, at 896, does not turn on such formalities. See Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 678, 679 (1996) (formal distinctions such as whether a “service provider” has a “contract of employment or a contract for services” with the government is a “very poor proxy” for constitutional interests at stake). The fact that respondents’ direct employment relationship is with Cal Tech—which operates JPL under a Government contract—says very little about the interests at stake in this case. The record shows that, as a “practical matter,” there are no “[r]elevant distinctions” between the duties performed by NASA’s civil-service workforce and its contractor workforce. App. 221. The two classes of employees perform “functionally equivalent duties,” and the extent of employees’ “access to NASA … facilities” turns not on formal status but on the nature of “the jobs they perform.” Ibid.
At JPL, in particular, the work that contract employees perform is critical to NASA’s mission. Respondents in this case include “the lead trouble-shooter for … th[e] $568 [million]” Kepler space observatory, 7 Record 396; the leader of the program that “tests … all new technology that NASA will use in space,” App. 60; and one of the lead “trajectory designers for … the Galileo Project and the Apollo Moon landings,” id., at 62. This is important work, and all of it is funded with a multibillion dollar investment from the American taxpayer. See NASA, Jet Propulsion Laboratory Annual Report 09, p. 35 (2010), online at http://www.jpl.nasa.gov/annualreport/2009-report.pdf. The Government has a strong interest in conducting basic background checks into the contract employees minding the store at JPL.[Footnote 12]
With these interests in view, we conclude that the challenged portions of both SF–85 and Form 42 consist of reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations. See Engquist, 553 U. S., at 598–599; Whalen, 429 U. S., at 597–598. As to SF–85, the only part of the form challenged here is its request for information about “any treatment or counseling received” for illegal-drug use within the previous year. The “treatment or counseling” question, however, must be considered in context. It is a followup to SF–85’s inquiry into whether the employee has “used, possessed, supplied, or manufactured illegal drugs” during the past year. 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. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity).
In context, the follow-up question on “treatment or counseling” for recent illegal-drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the “treatment or counseling” question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities.[Footnote 13]
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. Respondents’ argument is that, if drug treatment is only used to mitigate, then the Government should change the mandatory phrasing of SF–85—“Include [in your answer] any treatment or counseling received”—so as to make a response optional. App. 94. As it stands, the mandatory “treatment or counseling” question is unconstitutional, in respondents’ view, because it is “more intrusive than necessary to satisfy the government’s objective.” Brief for Respondents 26; 530 F. 3d, at 879 (holding that “treatment or counseling” question should be enjoined because the form “appears to compel disclosure”).
We reject the argument that the Government, when it requests job-related personal information in an employment background check, has a constitutional burden to demonstrate that its questions are “necessary” or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to Whalen. The patients in Whalen, much like respondents here, argued that New York’s statute was unconstitutional because the State could not “demonstrate the necessity” of its program. 429 U. S., at 596. The Court quickly rejected that argument, concluding that New York’s collection of patients’ prescription information could “not be held unconstitutional simply because” a court viewed it as “unnecessary, in whole or in part.” Id., at 596–597.
That analysis applies with even greater force where the Government acts, not as a regulator, but as the manager of its internal affairs. See Engquist, supra, at 598–599. SF–85’s “treatment or counseling” question reasonably seeks to identify a subset of acknowledged drug users who are attempting to overcome their problems. The Government’s considered position is that phrasing the question in more permissive terms would result in a lower response rate, and the question’s effectiveness in identifying illegal-drug users who are suitable for employment would be “materially reduced.” Reply Brief for Petitioners 19. That is a reasonable position, falling within the “ ‘wide latitude’ ” granted the Government in its dealings with employees. See Engquist, supra, at 600.
The Court of Appeals also held that the broad, “open-ended questions” on Form 42 likely violate respondents’ informational-privacy rights. Form 42 asks applicants’ designated references and landlords for “information” bearing on “suitability for government employment or a security clearance.” App. 97. In a series of questions, the Government asks if the reference has any “adverse information” about the applicant’s “honesty or trustworthiness,” “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.” Ibid.
These open-ended inquiries, like the drug-treatment question on SF–85, are reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business. See Engquist, supra, at 598–599. Asking an applicant’s designated references broad, open-ended questions about job suitability is an appropriate tool for separating strong candidates from weak ones. It would be a truly daunting task to catalog all the reasons why a person might not be suitable for a particular job, and references do not have all day to answer a laundry list of specific questions. See CDIA Brief 6–7 (references “typically have limited time to answer questions from potential employers,” and “open-ended questions” yield more relevant information than narrow inquiries). Form 42, by contrast, takes just five minutes to complete. 75 Fed. Reg. 5359.
The reasonableness of such open-ended questions is illustrated by their pervasiveness in the public and private sectors. Form 42 alone is sent out by the Government over 1.8 million times annually. Ibid. In addition, the use of open-ended questions in employment background checks appears to be equally commonplace in the private sector. See, e.g., S. Bock et al., Mandated Benefits 2008 Compliance Guide, Exh. 20.1, A Sample Policy on Reference Checks on Job Applicants (“Following are the guidelines for conducting a telephone reference check: … Ask open-ended questions, then wait for the respondent to answer”); M. Zweig, Human Resources Management 87 (1991) (“Also ask, ‘Is there anything else I need to know about [candidate’s name]?’ This kind of open-ended question may turn up all kinds of information you wouldn’t have gotten any other way”). The use of similar open-ended questions by the Government is reasonable and furthers its interests in managing its operations.
Not only are SF–85 and Form 42 reasonable in light of the Government interests at stake, they are also subject to substantial protections against disclosure to the public. Both Whalen and Nixon recognized that government “accumulation” of “personal information” for “public purposes” may pose a threat to privacy. Whalen, 429 U. S., at 605; see Nixon 433 U. S., at 457–458, 462. But both decisions also stated that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays these privacy concerns. Whalen, supra, at 605; Nixon, supra, at 458–459. The Court in Whalen, relying on New York’s “security provisions” prohibiting public disclosure, turned aside a challenge to the collection of patients’ prescription information. 429 U. S., at 594, and n. 12, 600–601, 605. In Nixon, the Court rejected what it regarded as an even “weaker” claim by the former President because the Presidential Recordings and Materials Preservation Act “[n]ot only . . . mandate[d] regulations” against “undue dissemination,” but also required immediate return of any “purely private” materials flagged by the Government’s archivists. 433 U. S., at 458–459.
Respondents in this case, like the patients in Whalen and former President Nixon, attack only the Government’s collection of information on SF–85 and Form 42. And here, no less than in Whalen and Nixon, the information collected is shielded by statute from “unwarranted disclosur[e].” See Whalen, supra, at 605. The Privacy Act, which covers all information collected during the background-check process, allows the Government to maintain records “about an individual” only to the extent the records are “relevant and necessary to accomplish” a purpose authorized by law. 5 U. S. C. §552a(e)(1). The Act requires written consent before the Government may disclose records pertaining to any individual. §552a(b). And the Act imposes criminal liability for willful violations of its nondisclosure obligations. §552a(i)(1). These requirements, as we have noted, give “forceful recognition” to a Government employee’s interest in maintaining the “confidentiality of sensitive information . . . in his personnel files.” Detroit Edison Co. v. NLRB, 440 U. S. 301, 318, n. 16 (1979). Like the protections against disclosure in Whalen and Nixon, they “evidence a proper concern” for individual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459.
Notwithstanding these safeguards, respondents argue that statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)–(12), leave its protections too porous to supply a meaningful check against “unwarranted disclosures,” Whalen, supra, at 605. Respondents point in particular to what they describe as a “broad” exception for “routine use[s],” defined as uses that are “compatible with the purpose for which the record was collected.” §§552a(b)(3), (a)(7).
Respondents’ reliance on these exceptions rests on an incorrect reading of both our precedents and the terms of the Privacy Act. As to our cases, the Court in Whalen and Nixon referred approvingly to statutory or regulatory protections against “unwarranted disclosures” and “undue dissemination” of personal information collected by the Government. Whalen, supra, at 605; Nixon, supra, at 458. Neither case suggested that an ironclad disclosure bar is needed to satisfy privacy interests that may be “root[ed] in the Constitution.” Whalen, supra, at 605. In Whalen, the New York statute prohibiting “[p]ublic disclosure of the identity of patients” was itself subject to several exceptions. 429 U. S., at 594–595, and n. 12. In Nixon, the protections against “undue dissemination” mentioned in the opinion were not even before the Court, but were to be included in forthcoming regulations “mandate[d]” by the challenged Act. 433 U. S., at 458; see id., at 437–439 (explaining that the Court was limiting its review to the Act’s “facial validity” and was not considering the Administrator’s forthcoming regulations). Thus, the mere fact that the Privacy Act’s nondisclosure requirement is subject to exceptions does not show that the statute provides insufficient protection against public disclosure.
Nor does the substance of the “routine use” exception relied on by respondents create any undue risk of public dissemination. None of the authorized “routine use[s]” of respondents’ background-check information allows for release to the public. 71 Fed. Reg. 45859–45860, 45862 (2006); 60 Fed. Reg. 63084 (1995), as amended, 75 Fed. Reg. 28307 (2010). Rather, the established “routine use[s]” consist of limited, reasonable steps designed to complete the background-check process in an efficient and orderly manner. See Whalen, supra, at 602 (approving disclosures to authorized New York Department of Health employees that were not “meaningfully distinguishable” from routine disclosures “associated with many facets of health care”). One routine use, for example, involves a limited disclosure to persons filling out Form 42 so that designated references can “identify the individual” at issue and can understand the “nature and purpose of the investigation.” App. 89. Authorized JPL employees also review each completed SF–85 to verify that all requested information has been provided. Id., at 211. These designated JPL employees may not “disclose any information contained in the form to anyone else,” ibid., and Cal Tech is not given access to adverse information uncovered during the Government’s background check, id., at 207–208. The “remote possibility” of public disclosure created by these narrow “routine use[s]” does not undermine the Privacy Act’s substantial protections. See Whalen, 429 U. S., at 601–602 (“remote possibility” that statutory security provisions will “provide inadequate protection against unwarranted disclosures” not a sufficient basis for striking down statute).
Citing past violations of the Privacy Act,[Footnote 14] respondents note that it is possible that their personal information could be disclosed as a result of a similar breach. But data breaches are a possibility any time the Government stores information. As the Court recognized in Whalen, the mere possibility that security measures will fail provides no “proper ground” for a broad-based attack on government information-collection practices. Ibid. Respondents also cite a portion of SF–85 that warns of possible disclosure “[t]o the news media or the general public.” App. 89. By its terms, this exception allows public disclosure only where release is “in the public interest” and would not result in “an unwarranted invasion of personal privacy.” Ibid. Respondents have not cited any example of such a disclosure, nor have they identified any plausible scenario in which their information might be unduly disclosed under this exception.[Footnote 15]
In light of the protection provided by the Privacy Act’s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check, we conclude that the Government’s inquiries do not violate a constitutional right to informational privacy. Whalen, supra, at 605.
* * *
For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kagan took no part in the consideration or decision of this case.Footnote 1
As alternatives to the NACI process, the Department of Commerce also authorized federal agencies to use another “Office of Personnel Management … or National Security community investigation required for Federal employment.” App. 145. None of these alternative background checks are at issue here.Footnote 2
For public-trust and national-security positions, more detailed forms are required. See OPM, Standard Form 85P, Questionnaire for Public Trust Positions, online at http://www.opm.gov/Forms/pdf_fill/sf85p.pdf; (all Internet materials as visited Jan. 13, 2011, and available in Clerk of Court’s case file); OPM, Standard Form 86, Questionnaire for National Security Positions, online at http://www.opm.gov/Forms/ pdf_fill/sf86.pdf.Footnote 3
The Government sends separate forms to employers (Form 41), educational institutions (Form 43), record repositories (Form 40), and law enforcement agencies (Form 44). 75 Fed. Reg. 5359. None of these forms are at issue here.Footnote 4
Respondents sought to represent a class of “JPL employees in non-sensitive positions.” App. 79. No class has been certified.Footnote 5
In the Ninth Circuit, respondents also challenged the criteria that they believe the Government will use to determine their “suitability” for employment at JPL. Respondents relied on a document, which had been temporarily posted on the JPL intranet, that listed factors purportedly bearing on suitability for federal employment. App. 98–104. Among the listed factors were a failure to “mee[t] financial obligations,” “health issues,” and “mental, emotional, psychological, or psychiatric issues.” Id., at 98, 102. Other factors, which were listed under the heading “Criminal or Immoral Conduct,” included “indecent exposure,” “voyeurism,” “indecent proposal[s],” and “carnal knowledge.” Id., at 98. The document also stated that while “homosexuality,” “adultery,” and “illegitimate children” were not “suitability” issues in and of themselves, they might pose “security issue[s]” if circumstances indicated a “susceptibility to coercion or blackmail.” Id., at 102. The Court of Appeals rejected respondents’ “challenges to . . . suitability determination[s]” as unripe. 530 F. 3d, at 873. Although respondents did not file a cross-petition from that portion of the Ninth Circuit’s judgment, they nonetheless discuss these suitability criteria at some length in their brief before this Court. Respondents’ challenge to these criteria is not before us. We note, however, the Acting Solicitor General’s statement at oral argument that “NASA will not and does not use” the document to which respondents object “to make contractor credentialing decisions.” Tr. of Oral Arg. 22.Footnote 6
429 U. S., at 598–599, and n. 25 (citing Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting) (describing “the right to be let alone” as “the right most valued by civilized men”); Griswold v. Connecticut, 381 U. S. 479, 483 (1965) (“[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion”); Stanley v. Georgia, 394 U. S. 557, 559, 568 (1969); California Bankers Assn. v. Shultz, 416 U. S. 21, 79 (1974) (Douglas, J., dissenting); and id., at 78 (Powell, J., concurring)).Footnote 7
429 U. S., at 599–600, and n. 26 (citing Roe v. Wade, 410 U. S. 113 (1973); Doe v. Bolton, 410 U. S. 179 (1973); Loving v. Virginia, 388 U. S. 1 (1967); Griswold v. Connecticut, supra; Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); and Allgeyer v. Louisiana, 165 U. S. 587 (1897)).Footnote 8
The Court continued its discussion of Fourth Amendment principles throughout the “Privacy” section of the opinion. See 433 U. S., at 459 (citing United States v. Miller, 425 U. S. 435 (1976), United States v. Dionisio, 410 U. S. 1 (1973), and Katz, 389 U. S. 347)); 433 U. S., at 460–462 (addressing the former President’s claim that the Act was “tantamount to a general warrant” under Stanford v. Texas, 379 U. S. 476 (1965)); 433 U. S., at 463–465, and n. 26 (concluding that the challenged law was analogous to the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, notwithstanding the lack of a “warrant requirement”).Footnote 9
State and lower federal courts have offered a number of different interpretations of Whalen and Nixon over the years. Many courts hold that disclosure of at least some kinds of personal information should be subject to a test that balances the government’s interests against the individual’s interest in avoiding disclosure. E.g., Barry v. New York, 712 F. 2d 1554, 1559 (CA2 1983); Fraternal Order of Police v. Philadelphia, 812 F. 2d 105, 110 (CA3 1987); Woodland v. Houston, 940 F. 2d 134, 138 (CA5 1991) (per curiam); In re Crawford, 194 F. 3d 954, 959 (CA9 1999); State v. Russo, 259 Conn. 436, 459–464, 790 A. 2d 1132, 1147–1150 (2002). The Sixth Circuit has held that the right to informational privacy protects only intrusions upon interests “that can be deemed fundamental or implicit in the concept of ordered liberty.” J. P. v. DeSanti, 653 F. 2d 1080, 1090 (1981) (internal quotation marks omitted). The D. C. Circuit has expressed “grave doubts” about the existence of a constitutional right to informational privacy. American Federation of Govt. Employees v. HUD, 118 F. 3d 786, 791 (1997).Footnote 10
The opinions concurring in the judgment disagree with this approach and would instead provide a definitive answer to the question whether there is a constitutional right to informational privacy. Post, at 6–7 (opinion of Scalia, J.); post, at 1 (opinion of Thomas, J.). One of these opinions expresses concern that our failure to do so will “har[m] our image, if not our self-respect,” post, at 7 (Scalia, J.), and will cause practical problems, post, at 8–9. There are sound reasons for eschewing the concurring opinions’ recommended course.
“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.). 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. It is undesirable for us 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. See Pet. for Cert. 15 (“no need in this case” for broad decision on “the scope of a constitutionally-based right to privacy for certain information”). Particularly in cases like this one, where we have only the “scarce and open-ended” guideposts of substantive due process to show us the way, see Collins v. Harker Heights, 503 U. S. 115, 125 (1992), the Court has repeatedly recognized the benefits of proceeding with caution. E.g., Herrera v. Collins, 506 U. S. 390, 417 (1993) (joined by Scalia, J.) (assuming “for the sake of argument … that in a capital case a truly persuasive demonstration of ‘actual innocence’ ” made after conviction would render execution unconstitutional); Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 279 (1990) (joined by Scalia, J.) (“[W]e assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition”); Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 222–223 (1985) (“assum[ing], without deciding, that federal courts can review an academic decision of a public educational institution under a substantive due process standard”); Board of Curators of Univ. of Mo. v. Horowitz, 435 U. S. 78, 91–92 (1978) (same); see also New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 20 (1988) (Scalia, J., concurring in part and concurring in judgment) (joining the Court’s opinion on the understanding that it “assumes for purposes of its analysis, but does not hold, the existence of a constitutional right of private association for other than expressive or religious purposes”).
Justice Scalia provides no support for his claim that our approach in this case will “dramatically increase the number of lawsuits claiming violations of the right to informational privacy,” post, at 9, and will leave the lower courts at sea. We take the same approach here that the Court took more than three decades ago in Whalen and Nixon, and there is no evidence that those decisions have caused the sky to fall.
We therefore decide the case before us and leave broader issues for another day.Footnote 11
The debate on the 1871 Act in the House of Representatives contained this exchange on presidential authority to conduct background checks:
“Mr. Peters: Has he not that power [to conduct the proposed investigations of candidates for the civil service] now?
“Mr. Dawes: He has all that power. If you will go up to the War Department or the Department of the Interior you will see pretty much all of this nailed up on the doors, in the form of rules and regulations.” Cong. Globe, 41st Cong., 3d Sess., 1935 (1871).Footnote 12
In their brief, respondents also rely on the fact that many of them have been working at JPL for years and that Cal Tech previously vetted them through standard “employment reference checks.” Brief for Respondents 52–53. The record indicates that this may be wrong as a factual matter. E.g., 7 Record 391 (“I have not been required to undergo any type of background investigation to maintain my position with JPL”); id., at 397 (“I have never been required to undergo any type of background investigation to maintain my position with JPL other than … [one] which required that I provide my name, social security number, and current address” to facilitate a “check for outstanding warrants, arrests, or convictions”); id., at 356, 367, 386–387 (similar). Even if it were correct, the fact that Cal Tech once conducted a background check on respondents does not diminish the Government’s interests in conducting its own standard background check to satisfy itself that contract employees should be granted continued access to the Government’s facility. In any event, counsel abandoned this position at oral argument. Tr. of Oral Arg. 38.Footnote 13
Asking about treatment or counseling could also help the Government identify chronic drug abusers for whom, “despite counseling and rehabilitation programs, there is little chance for effective rehabilitation.” 38 Fed. Reg. 33315 (1973). At oral argument, however, the Acting Solicitor General explained that NASA views treatment or counseling solely as a “mitigat[ing]” factor that ameliorates concerns about recent illegal drug use. Tr. of Oral Arg. 19.Footnote 14
E.g., GAO, Personal Information: Data Breaches are Frequent, but Evidence of Resulting Identity Theft is Limited; However, the Full Extent Is Unknown 5, 20 (GAO 07–737, 2007) (over 3-year period, 788 data breaches occurred at 17 federal agencies).Footnote 15
Respondents further contend that the Privacy Act’s ability to deter unauthorized release of private information is significantly hampered by the fact that the statute provides only “an ex post money-damages action,” not injunctive relief. Brief for Respondents 44 (citing Doe v. Chao, 540 U. S. 614, 635 (2004) (Ginsburg, J., dissenting)). Nothing in Whalen or Nixon suggests that any private right of action—for money damages or injunctive relief—is needed in order to provide sufficient protection against public disclosure.
SCALIA, J., CONCURRING IN JUDGMENT
NASA V. NELSON
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, et al., PETITIONERS v. ROBERT M. NELSON et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 19, 2011]
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution. But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.
Before addressing the constitutional issues, however, I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law, such as two reports of the Government Accountability Office and an EEOC document concerning “Enforcement Guidance.” And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States. The body of the brief includes a single, fleeting reference to the Due Process Clause, buried in a citation of the assuredly inapposite Lawrence v. Texas, 539 U. S. 558 (2003), Brief for Respondents 42; but no further attempt is made to argue that NASA’s actions deprived respondents of liberty without due process of law. And this legal strategy was not limited to respondents’ filing in this Court; in the Ninth Circuit respondents asserted in a footnote that “courts have grounded the right to informational privacy in various provisions of the Constitution,” Brief for Appellants in No. 07–56424, p. 25, n. 18, but declined to identify which ones applied here.
To tell the truth, I found this approach refreshingly honest. 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. Regrettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this litigation, that the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment. Tr. of Oral Arg. 28–29. That counsel invoked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented.
This 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). Respondents make no claim that the State has deprived them of liberty without the requisite procedures, and their due process claim therefore must fail. Even under the formula we have adopted for identifying liberties entitled to protection under the faux “substantive” component of the Due Process Clause—that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 720–721 (1997) (internal quotation marks omitted)—respondents’ claim would fail. Respondents do not even attempt to argue that the claim 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.
The absurdity of respondents’ position in this case should not, however, obscure the broader point: Our due process precedents, even our “substantive due process” precedents, do not support any right to informational privacy. First, we have held that the government’s act of defamation does not deprive a person “of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” Paul v. Davis, 424 U. S. 693, 709 (1976). We reasoned that stigma, standing alone, does not “significantly alte[r]” a person’s legal status so as to “justif[y] the invocation of procedural safeguards.” Id., at 708–709. If outright defamation does not qualify, it is unimaginable that the mere disclosure of private information does.
Second, respondents challenge the Government’s collection of their private information. But the Government’s collection of private information is regulated by the Fourth Amendment, and “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U. S. 833, 842 (1998) (internal quotation marks omitted; alteration in original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, correctly holding that the Form 42 inquiries to third parties were not Fourth Amendment “searches” under United States v. Miller, 425 U. S. 435 (1976), and that the Fourth Amendment does not prohibit the Government from asking questions about private information. 530 F. 3d 865, 876–877 (2008). That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.
In sum, I would simply hold that there is no constitutional right to “informational privacy.” Besides being consistent with constitutional text and tradition, this view has the attractive benefit of resolving this case without resort to the Court’s exegesis on the Government’s legitimate interest in identifying contractor drug abusers and the comfortingly narrow scope of NASA’s “routine use” regulations. I shall not fill 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. Instead, it states that it will “assume, without deciding” that there exists a right to informational privacy, ante, at 1.
The Court’s sole justification for its decision to “assume, without deciding” is that the Court made the same mistake before—in two 33-year-old cases, Whalen v. Roe, 429 U. S. 589 (1977), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977).* Ante, at 11. But stare decisis is simply irrelevant when the pertinent precedent assumed, without deciding, the existence of a constitutional right. “Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation marks omitted). “It is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles.” Ibid. (internal quotation marks omitted). Here, however, there is no applicable rule of law that is settled. To the contrary, Whalen and Nixon created an uncertainty that the text of the Constitution did not contain and that today’s opinion perpetuates.
A further reason Whalen and Nixon are not entitled to stare decisis effect is that neither opinion supplied any coherent reason why a constitutional right to informational privacy might exist. As supporting authority, Whalen cited Stanley v. Georgia, 394 U. S. 557 (1969), a First Amendment case protecting private possession of obscenity; the deservedly infamous dictum in Griswold v. Connecticut, 381 U. S. 479 (1965), concerning the “penumbra” of the First Amendment; and three concurring or dissenting opinions, none of which remotely intimated that there might be such a thing as a substantive due process right to informational privacy. 429 U. S., at 599, n. 25. Nixon provided even less support. After citing the observation in Whalen that “[o]ne element of privacy has been characterized as the individual interest in avoiding disclosure of personal matters,” Nixon, supra, at 457 (quoting Whalen, supra, at 599; internal quotation marks omitted), it proceeded to conduct a straightforward Fourth Amendment analysis. It “assume[d]” that there was a “legitimate expectation of privacy” in the materials, and rejected the appellant’s argument that the statute at issue was “precisely the kind of abuse that the Fourth Amendment was intended to prevent.” Nixon, supra, at 457–458, 460. It is unfathomable why these cases’ passing, barely explained reference to a right separate from the Fourth Amendment—an unenumerated right that they held to be not applicable—should be afforded stare decisis weight.
At this point the reader may be wondering: “What, after all, is the harm in being ‘minimalist’ and simply refusing to say that violation of a constitutional right of informational privacy can never exist? The outcome in this case is the same, so long as the Court holds that any such hypothetical right was not violated.” Well, there is harm. The Court’s never-say-never disposition does damage for several reasons.
1. It is in an important sense not actually minimalist. By substituting for one real constitutional question (whether there exists a constitutional right to informational privacy) a different constitutional question (whether NASA’s 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 its business: the appropriate balance between security and privacy. If I am correct that there exists no right to in-formational privacy, all that discussion is an exercise in judicial maximalism. Better simply to state and apply the law forthrightly than to hold our view of the law in pectore, so that we can inquire into matters beyond our charter, and probably beyond our ken.
If, on the other hand, the Court believes that there is a constitutional right to informational privacy, then I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right 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. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.
2. It harms our image, if not our self-respect, because it makes no sense. 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. As I explained last Term in objecting to another of the Court’s never-say-never dispositions:
“[The Court] cannot decide that [respondents’] claim fails without first deciding what a valid claim would consist of… . [A]greeing to or crafting a hypothetical standard for a hypothetical constitutional right is sufficiently unappealing … that [the Court] might as well acknowledge the right as well. Or [it] could avoid the need to agree with or craft a hypothetical standard by denying the right. But embracing a standard while being coy about the right is, well, odd; and deciding this case while addressing neither the standard nor the right is quite impossible.” Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. ___, ___ (2010) (plurality opinion) (joined by Alito, J.) (slip op., at 12–13).
Whatever the virtues of judicial minimalism, it cannot justify judicial incoherence.
The Court defends its approach by observing that “we have only the ‘scarce and open-ended’ ” guideposts of substantive due process to show us the way.” Ante, at 11, n. 10. I would have thought that this doctrinal obscurity should lead us to provide more clarity for lower courts; surely one vague opinion should not provide an excuse for another.
The Court observes that I have joined other opinions that have assumed the existence of constitutional rights. Ibid. It is of course acceptable to reserve difficult constitutional questions, so long as answering those questions is unnecessary to coherent resolution of the issue presented in the case. So in Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 279–280 (1990), we declined to decide whether a competent person had a constitutional right to refuse lifesaving hydration, because—under a constitutional standard we laid out in detail—such a right did not exist for an incompetent person. In Herrera v. Collins, 506 U. S. 390, 417–418 (1993), we declined to decide whether it would be unconstitutional to execute an innocent person, because Herrera had not shown that he was innocent. In New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 10–15 (1988), we declined to decide whether there was a constitutional right of private association for certain clubs, because the plaintiff had brought a facial challenge, which would fail if the statute was valid in many of its applications, making it unnecessary to decide whether an as-applied challenge as to some clubs could succeed. Here, however, the Court actually applies a constitutional informational privacy standard without giving a clue as to the rule of law it is applying.
3. It provides no guidance whatsoever for lower courts. Consider the sheer multiplicity of unweighted, relevant factors alluded to in today’s opinion:
It is relevant that the Government is acting “in its capacity ‘as proprietor’ and manager of its ‘internal operation.’ ” Ante, at 12. Of course, given that we are told neither what the appropriate standard should be when the Government is acting as regulator nor what the appropriate standard should be when it is acting as proprietor, it is not clear what effect this fact has on the analysis; but at least we know that it is something.
History and tradition have some role to play, ante, at 13–14, but how much is uncertain. The Court points out that the Federal Government has been conducting investigations of candidates for employment since the earliest days; but on the other hand it acknowledges that extension of those investigations to employees of contractors is of very recent vintage.
The contract employees are doing important work. They are not mere janitors and maintenance men; they are working on a $568 million observatory. Ante, at 15. Can it possibly be that the outcome of today’s case would be different for background checks of lower-level employees? In the spirit of minimalism we are never told.
Questions about drug treatment are (hypothetically) constitutional because they are “reasonable,” “useful,” and “humane.” Ante, at 16–17 (internal quotation marks omitted). And questions to third parties are constitutional because they are “appropriate” and “pervasiv[e].” Ante, at 18–19. Any or all of these adjectives may be the hypothetical standard by which violation of the hypothetical constitutional right to “informational privacy” is evaluated.
The Court notes that a “ ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays these privacy concerns,” ante, at 20 (emphasis added), but it gives no indication of what the exceptions to this general rule might be. It then discusses the provisions of the Privacy Act in detail, placing considerable emphasis on the limitations imposed by NASA’s routine-use regulations. Ante, at 21–23. From the length of the discussion, I would bet that the Privacy Act is necessary to today’s holding, but how much of it is necessary is a mystery.
4. It will dramatically increase the number of lawsuits claiming violations of the right to informational privacy. Rare will be the claim that is supported by none of the factors deemed relevant in today’s opinion. 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. Respondents claim that even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Government is seeking only information about drug treatment and information from third parties that is standard in background checks, and even though the Government is liable for damages if that information is ever revealed, and even though NASA’s Privacy Act regulations are very protective of private information, NASA’s background checks are unconstitutional. Ridiculous. In carefully citing all of these factors as the basis for its decision, the Court makes the distinguishing of this case simple as pie.
In future cases filed under 42 U. S. C. §1983 in those circuits that recognize (rather than merely hypothesize) a constitutional right to “informational privacy,” lawyers will always (and I mean always) find some way around today’s opinion: perhaps the plaintiff will be a receptionist or a janitor, or the protections against disclosure will be less robust. And oh yes, the fact that a losing defendant will be liable not only for damages but also for attorney’s fees under §1988 will greatly encourage lawyers to sue, and defendants—for whom no safe harbor can be found in the many words of today’s opinion—to settle. This plaintiff’s claim has failed today, but the Court makes a generous gift to the plaintiff’s bar.
* * *
Because I deem it the “duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), I concur only in the judgment.
* Contrary to the Court’s protestation, ante, at 11, n. 10, the Court’s failure to address whether there is a right to informational privacy cannot be blamed upon the Government’s concession that such a right exists, and indeed the Government’s startling assertion that Whalen and Nixon (which decided nothing on the constitutional point, and have not been so much as cited in our later opinions) were “seminal”—seminal!—decisions. Reply Brief for Petitioner 22. We are not bound by a litigant’s concession on an issue of law. See, e.g., Grove City College v. Bell, 465 U. S. 555, 562, n. 10 (1984). And it should not be thought that the concession by the United States is an entirely self-denying act. To be sure, it subjects the Executive Branch to constitutional limitations on the collection and use of information; but the Privacy Act, 5 U. S. C. §552a (2006 ed. and Supp. III), already contains extensive limitations not likely to be surpassed by constitutional improvisation. And because Congress’s power under §5 of the Fourteenth Amendment extends to the full scope of the Due Process Clause, see City of Boerne v. Flores, 521 U. S. 507 (1997), the United States has an incentive to give that Clause a broad reading, thus expanding the scope of federal legislation that it justifies. Federal laws prevent-ing state disregard of “informational privacy” may be a twinkle in the Solicitor General’s eye.
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, et al., PETITIONERS v. ROBERT M. NELSON et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[January 19, 2011]
Justice Thomas, concurring in the 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., dissenting) (“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 for even the most casual user of words.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 7).
ORAL ARGUMENT OF GENERAL NEAL K. KATYAL ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-530, National Aeronautics and Space Administration v. Nelson.
Mr. Katyal: Thank you, Mr. Chief Justice, and may it please the Court:
Background checks are a standard way of doing business.
The Government has required them for all civil service employees since 1953 and for contractors since 2005.
If the Ninth Circuit in this case held that a constitutional right to informational privacy precluded asking the questions it asks, that was wrong for two basic reasons.
First, the background checks' mere collection of information with accompanying safeguards vitiates no constitutional privacy interest.
These checks have been going on for millions of employees for dozens of years.
They are part of the employment process.
They are manifestly not roving checks on random individuals.
Justice Sonia Sotomayor: Mr. Katyal, is there any limit to what questions the Government can ask--
Mr. Katyal: Well, the--
Justice Sonia Sotomayor: --an applicant?
Mr. Katyal: --The -- the limits are -- in this case, are the ones on SF-85 and Form 42.
And we do think that that's a fairly restrict--
Justice Sonia Sotomayor: What does that mean?
Mr. Katyal: --Well, those two--
Justice Sonia Sotomayor: Could you ask somebody, what's your genetic make-up, because we don't want people with a gene that is predisposed to cancer?
Whatever other -- could you ask that?
Mr. Katyal: --Well, I think that the Court doesn't need to confront that--
Justice Sonia Sotomayor: We do, because I have to start with the question of: What are the limits on the Government, if any?
Are you taking the position that as an employer, there are absolutely none, or are you taking the position that there are some, and what would they be?
Mr. Katyal: --Our position is in a case such as this, where there are collections on the Government's dissemination of the information--
Justice Sonia Sotomayor: So what you are saying is, there is no limit?
Mr. Katyal: --I -- I think that this Court in Whalen -- there is no decision thus far that has recognized any constitutional limit on the Government's collection of information, so long as there are accompanying safeguards on the disseminations and--
Justice Ruth Bader Ginsburg: General Katyal, why are we getting into this?
Because this case, it seems to me, is a challenge -- a challenge to a preliminary injunction which was quite narrow.
There was only one question at issue.
There is no cross-appeal, is there?
Mr. Katyal: --There -- there is no cross-appeal.
Justice Ruth Bader Ginsburg: So we have Form 85.
The only thing that's in contention there is the question about treatment or counsel.
So why are we talking about the universe of what questions might be asked?
And on the other form, I take it, it's just the so-called open-ended questions, not everything on the form.
Mr. Katyal: I quite agree, Justice Ginsburg.
That's what I was trying to say to Justice Sotomayor; that is, I think that this case doesn't force the Court to answer questions it has never really answered, which are the outer limits of what the Government can do in terms of the collection of information.
Here you have a narrow decision by the Ninth Circuit, one whose reasoning, I think, could radiate very broadly and undermine government -- the Government's background check--
Justice Ruth Bader Ginsburg: What do you think has been -- there hasn't been a formal injunction entered, a preliminary -- a preliminary junction, has there?
Mr. Katyal: --It's only -- it's at the preliminary injunction stage.
But our -- our point is that the reasoning that the Ninth Circuit used, if adopted -- if adopted to create a permanent injunction, could preclude the Government from asking all sorts of questions in background -- in background checks.
Not just the ones it isolated here, but more general ones, because the Ninth Circuit decision is essentially a how-to manual on how to question various individual questions and micromanage them and inject Federal courts into--
Justice Ruth Bader Ginsburg: I thought that the -- the entire Form 85 was approved.
There's no questions you could ask about, have you used drugs within the last year?
It's only the question about treatment and counseling that is at issue.
Mr. Katyal: --That's -- that's all that the Ninth Circuit ruled on at the preliminary injunction stage.
Chief Justice John G. Roberts: Does that -- does that ruling stop you from asking that question right now throughout the Ninth Circuit?
Mr. Katyal: Which question?
The drug treatment question?
Chief Justice John G. Roberts: No, no, no.
The -- yes.
Yes, the counseling and treatment question.
Mr. Katyal: Well, there's a -- the mandate has been stayed, so we haven't been able to--
Chief Justice John G. Roberts: Right.
But if we sustained -- if we sustain the preliminary injunction, the Government can't ask that question throughout the -- the -- the reach of the Ninth Circuit?
Mr. Katyal: --That's exactly correct.
Justice Anthony Kennedy: And -- and if we did so, it would be because there is an underlying privacy right that is somewhat ill-defined or undefined?
Mr. Katyal: Exactly, Justice Kennedy.
And if this Court were to embrace that reasoning -- and this is my answer to you, Justice Ginsburg, as well -- then it doesn't just reach drug treatment.
I could imagine other litigants doing it for other forms of questions, whatever they may be.
Justice Ruth Bader Ginsburg: But the -- the circuit precedent, as far as the other questions on Form 85, the circuit said that's okay.
It's permissible to ask those questions.
Mr. Katyal: Thus far, that's correct.
But I can imagine other litigants coming in, and maybe not just with respect to these questions but questions on SF-85P or Form 86, any number of other--
Justice Antonin Scalia: Mr. Katyal, what is the well-defined, the well-defined, constitutional right to institutional -- to informational privacy that the Government is -- is willing to acknowledge?
You -- you apparently don't -- don't challenge the existence of such a constitutional right.
Mr. Katyal: --Justice Scalia, our position is that the Court doesn't need to answer that question.
It's just like Whalen, because in Whalen this Court assumed the existence of some sort of constitutional right and then said: Is that right violated here?
Justice Antonin Scalia: It's a strange way to proceed.
We normally don't do that, see?
If there were a constitutional right, would it cover this?
Mr. Katyal: I agree--
Justice Antonin Scalia: Do we do that in cases?
Mr. Katyal: --I agree that in many other contexts, it might not be appropriate, but here I think there are some good reasons why.
This Court has had special reticence to the rule broadly in the range of privacy, and I think the reason is privacy is something that is in flux in ways that other things aren't, both in terms of our social understandings, technology, and legislation itself.
And for that reason, I think this Court has spoken narrowly whenever it's dealt with--
Justice Antonin Scalia: That would justify not defining it broadly or narrowly.
It wouldn't justify not reaching the question of whether there is any such constitutional right at all.
Mr. Katyal: --Justice Scalia, that's what this Court has done throughout its history.
Whalen was a unanimous decision and Nixon, on that particular question, I don't think there was a disagreement about.
Justice Samuel Alito: How can the Court determine that the right is not violated here without having some idea about either the existence or the contours of the right?
Mr. Katyal: --Well, I think it would just be like in Whalen itself.
So in Whalen, the Court said there might be some right to informational privacy, but so long as there are safeguards on the disclosure, the Government's dissemination of the information, that means that there is no--
Justice Samuel Alito: Is it your argument that the Government can collect whatever information it wants from private individuals so long as the information is not publicly disseminated?
Mr. Katyal: --No, that's not our position.
Our position here is that the Government can collect information so long as it is not disseminated in the employment context.
And this case, unlike Whalen, is one that has that added fact to it, that the Government here is asking--
Justice Anthony Kennedy: Well, does it help us in finding what this residual background right is and asking you: Why is it that you can't disclose it?
Mr. Katyal: --I'm sorry?
Justice Anthony Kennedy: Why can't you disseminate the information?
Mr. Katyal: Surely -- we are restricted by statute, the privacy of--
Justice Anthony Kennedy: Let's assume no statute.
Mr. Katyal: --If you assume--
Justice Anthony Kennedy: In other words, this is just testing whether there is some background constitutional right and how to define it, if we have to use that as a beginning premise.
Mr. Katyal: --Absolutely.
If we took out all of the safeguards that are at issue here, then the case wouldn't be like Whalen or Nixon, in which you had those -- in which you had safeguards in the dissemination.
And then you would have to confront the question, which we think you shouldn't confront in this case, for the reasons I said to Justice Scalia.
Justice Anthony Kennedy: And what would be your position if the -- all this information were disclosed?
Or that there was an attempt to disclose all the information, and they asked you for your advice on a constitutional basis.
Mr. Katyal: Right.
I mean, our position is that the Court really shouldn't, for all of the reasons I said, get into it; but if the Court had to get into it, and asked, is there some constitutional right that would be violated, Justice Kennedy, by your hypothetical, our answer would be no.
But we do think the way that this has been traditionally been handled is legislation.
Safeguards for political--
Chief Justice John G. Roberts: So when you say your position would be no, you mean that there is no right of any kind under your -- I know you don't want us to reach it, but you would say there is no right of any kind for a citizen to tell the Government: That is none of your business.
The Government will decide that it can ask anything of a citizen, so long as you don't disclose it.
Mr. Katyal: --Well, in the employment/proprietor context.
So if the Court had to confront that question, it would apply the matrix that Justice Scalia has talked about, the Glucksberg matrix, of whether a right -- the right is firmly rooted in the traditions of the people, and ask: Is the Government--
Chief Justice John G. Roberts: Do you think it's firmly rooted in our traditions that there is some right to tell the Government: That's none of your business?
Mr. Katyal: --I think there is some right.
The question about whether it employs in the unique employment/proprietor context is one the Court hasn't confronted, and our strong position here is the Court shouldn't confront it.
Justice Samuel Alito: What is the test -- what is the test for determining what sort of questions can be asked in the employment context?
Is there any limit?
Suppose the -- suppose the Government says: Well, we want to know all about your diet.
We want to know whether you smoke cigarettes.
We want to know everything you read.
We want to know what your hobbies are, what forms of entertainment you enjoy, sexual practices, every aspect of your private life, just because that gives us a better picture of who you are as an employee.
Is that okay?
Mr. Katyal: Sure.
No, there are limits, and I should have said this earlier.
If the Government's collection of information or the disclosure of the information burdens some other fundamental constitutional right, that is certainly one limit.
So if the Government were collecting information, Justice Alito, on sexual practices of its employees, it may burden the exercise of other rights.
Chief Justice John G. Roberts: Yes, but that's putting those aside.
I mean, what about some of the hypotheticals that Justice Alito posed?
That's certainly relevant in the employment context, right?
They are going to have to pay for your healthcare, worry you might miss things, miss days of work.
So I guess the point is: Do you think the Government's right to inquire in the employment context is exactly as broad as a private employer's right?
Mr. Katyal: I do think that if the private employer -- the private employers are a good template.
If the Government is simply mirroring what private employers do, as Justice Scalia said in O'Connor v. Ortega, that's a good suggestion that what it's doing is reasonable.
Now, to the extent, Justice Alito, that they are gradating far beyond what private employers do, in terms of asking about eating habits and the like, I do think that that may pose -- that there may be some limits.
The Court doesn't need to confront that here.
It simply needs to look at the Ninth Circuit's decision, which recognize a broad, free-standing right against informational collection of its employees to make sure and -- and realize that that is a serious problem for the way the Government does business.
Justice Antonin Scalia: We do have a legislature, don't we, that could place some limits on what the Government asks employees or anybody else?
Mr. Katyal: Absolutely.
Justice Antonin Scalia: It's the same legislature that prohibited the Government from disclosing a lot of information, isn't it?
Mr. Katyal: That's precisely correct.
Justice Antonin Scalia: And it's possible that that's the protection that the Framers envisioned, rather than having courts ride herd on Government inquiries.
Mr. Katyal: It's certainly possible, Justice Scalia.
I think that all of these hypotheticals are enormously interesting, but the--
Justice Sonia Sotomayor: Were these two forms approved by Congress?
Mr. Katyal: --The forms themselves were not approved by Congress, but the Privacy Act, which is the main restriction--
Justice Sonia Sotomayor: That's a restriction on disclosure, but the same Congress can change that, correct?
Mr. Katyal: --That's absolutely correct.
The Privacy Act has been around since 1975 and the Government has collected -- you know, it's been used millions of times, SF-85.
It's been used 553,000 times in the last four years, and we have not seen the types of disclosure or complaints that I think animate the worry that my friends on the other side are saying.
Chief Justice John G. Roberts: What is the reason -- I've had trouble putting my finger on it -- that you need the information about counseling?
You already have the information, have you used drugs in the past year.
I couldn't tell if you thought the question about counseling was for the good of the employee -- oh, you are taking steps to -- or was it to allow you to show, well, it must be serious, because you need counseling.
Mr. Katyal: It is for the good of the employee.
Chief Justice John G. Roberts: Well, I've asked you -- whenever the Government comes and says,
"This is for your own good. "
Unidentified Justice: [Laughter]
Chief Justice John G. Roberts: you have to be -- you have to be a little suspicious.
I mean, if it's -- the employee gets to expand upon his or her answer.
They say, tell us about it.
And they can say, don't worry, I'm in counseling or treatment.
And even then it doesn't sound like it's for their good.
It's one thing to say, I had a drink.
It's another thing to say, I'm in AA.
Mr. Katyal: Mr. Chief Justice, the way the question is framed is, first they are asked, have you used illegal drugs in the last year?
And then -- and then, if the answer is yes, provide details and then indicate any treatment or counseling received.
Chief Justice John G. Roberts: I have a question about the way it's worded.
You're -- it says, if you've used it in the last year, detail your involvement with drugs and any counseling you received.
Do you understand the counseling question to be limited to the past year, or to reach back as far as--
Mr. Katyal: I think that the question itself is vague.
Now, the way that the Office of Personnel Management will process such a form is it will process anything so long as there is information about just drug use.
Chief Justice John G. Roberts: --But do you think it's required?
I mean, you do sign at the end, this is true to the best -- do you think it's required to disclose counseling and treatment you received more than a year back?
Mr. Katyal: No.
This is unlike, for example, SF-86, which does ask for treatment and counseling back up to, I think, a 7-year period.
So I think this is a much more narrow inquiry, and I think the reason for that inquiry is to help the employee.
Justice Ruth Bader Ginsburg: The answer to that is obvious.
It was raised by the other side.
If it is for the good of the employee, make it voluntary.
Mr. Katyal: --Well, Justice Ginsburg, I think that that's the type -- think that's the type of inquiry that this Court rejected in Whalen.
Because in Whalen, the whole debate in the Court and the district court below was, well, if you want to stop doctor prescription mills, people providing too many narcotics, you don't need the names and ages of the patients.
We could change the triplicate forms and redact that.
But what this Court said on the second page of its opinion was it called that Lochnerian, that Federal courts shouldn't be policing forms and excising or suggesting random different -- you know, a few different words here or there.
And here, experts put this form together to try and get at, basically, are you using drugs and are you using treatment which might ameliorate the fact that you had used illegal drugs in the last year.
Justice Samuel Alito: Well, I had thought before the argument that one of the purposes for asking about treatment was to identify employees who may have undergone treatment on numerous occasions and dropped out of programs and been unsuccessful, so as to identify chronic drug abusers.
But I guess in light of what you've just said, that this only reaches back one year, that is not a purpose of this.
Mr. Katyal: That is correct.
And in preparation for this we did survey all of the NASA different centers to ask, has treatment ever been used in any sort of way to hurt an employee?
And the answer that came back was, no, it has not been used.
It has only been used to help.
It is to retain someone who did use illegal drugs, but is taking steps to mitigate.
Chief Justice John G. Roberts: Well, how do you know -- how do you know that?
I mean, you ask a lot of questions on these forms and they say, well, we're not going to hire you.
How can you go back and say it was because you put in, you know, in treatment for drug abuse?
Mr. Katyal: Well, the process by which this takes place is the form is filled out.
It's ultimately sent to an adjudicator if there is negative information, and that -- and that information is then discussed with the candidate for employment or the employee to see if they have an explanation.
And of the times that this has happened, that someone has been denied, and I think the number is 128 times over the -- over the last five years, none have been denied for a positive answer to drug treatment.
Chief Justice John G. Roberts: Over the last five years, this has only come into play 128 times across the Federal bureaucracy?
Mr. Katyal: For Federal contractors.
That is correct.
Chief Justice John G. Roberts: Federal contractors.
Mr. Katyal: Yes.
Justice Sonia Sotomayor: I'm sorry.
I'm not sure I understand the answer.
Only 128 times has somebody identified themselves as a drug user?
Mr. Katyal: 128 times, the SF-85 process, is my understanding, has been used to deny someone a credential of the Federal contractor--
Justice Sonia Sotomayor: So it could be for any other answers as well?
Mr. Katyal: --For anything.
About -- and I think there have been about 74,000 contractors that have sought badges through the SF-85, so--
Justice Sonia Sotomayor: Are you representing to us that every employee who is rejected will know the reason?
Mr. Katyal: --That is correct.
That is part of -- that is part of the regulations that are in place, so that if someone is denied a credential -- and this is, I think, at Joint Appendix, page 180 -- they are told the reason for that denial.
They are given an opportunity to explain themselves, and a process is then put in place.
There is then also robust appeal and other things that may happen as well.
But one thing that doesn't happen, Justice Sotomayor, is that JPL, the contractor, is not told the basis for why the person is denied a credential.
That is, it's private as between the Government -- here, NASA -- and the individual employee.
And that is the--
Justice Sonia Sotomayor: So where does the suitability matrix come in?
Mr. Katyal: --It doesn't.
Justice Sonia Sotomayor: It doesn't?
Mr. Katyal: It doesn't.
Justice Sonia Sotomayor: And NASA has never used it?
You're representing that to the Court?
Mr. Katyal: I'm representing that NASA has -- NASA will not and does not use this employment -- employee suitability chart to make contractor credentialing decisions.
Justice Ruth Bader Ginsburg: Where did it come from?
Mr. Katyal: Well, it's -- it's been hard to actually pin down where it came from.
I think it is derived from earlier Office of Personnel Management materials at a time when it listed out what various crimes were.
And so some of those things that are on there that are quite salacious are things that OPM, at earlier points in time, looked to, not for contractors, but for Government employees.
But I can represent to the Court that NASA does not and will not use this chart for credentialing decisions.
Justice Ruth Bader Ginsburg: Do you -- do you have a clear idea of how the Form 42 would have to be amended if the Respondents are correct?
Form 85, we know we excise "counseling or treatment".
What in the Form 85 did the Ninth Circuit say?
It said "open-ended questions", but I looked at the form and it is not clear to me which ones they considered open-ended.
Mr. Katyal: Justice Ginsburg, I quite agree with you.
I don't think that the Ninth Circuit's reasoning is capable of being ameliorated easily.
So we talked before about how the drug treatment was just a narrow part of the Ninth Circuit decision, but this Form 42, the invalidation of Form 42, goes to the heart of what the Government does all the time and what all employers do.
They ask open-ended questions to figure out whether someone is trustworthy and reliable.
Justice Sonia Sotomayor: General -- I'm sorry.
Go ahead and finish.
Mr. Katyal: I think as Judge Kleinfeld said, that's how law clerks are hired.
That's how baristas at Starbucks are hired.
You have to ask these open-ended questions because as an employer, you don't really know what -- where the pressure points or danger spots in an individual application are.
Justice Sonia Sotomayor: Is your position today that our ruling should say that the Government is free to ask, as a private employer or contractor -- it is free to ask any question it wants whatsoever?
Mr. Katyal: That is not what we're saying.
Justice Sonia Sotomayor: If you were not saying that, then what is the narrower ruling?
Because that's what I thought I heard at the beginning of our colloquy today.
Mr. Katyal: --Justice Sotomayor, the narrow rule is what we said in our petition and what we said on the very last page of our reply brief and all throughout, which is, this Court should simply say what it said in Whalen, which is assuming that there is some informational right to informational privacy.
The -- the use of a background check with accompanying safeguards to collect information doesn't violate the constitutional right to privacy.
Justice Sonia Sotomayor: Well, why wouldn't that violate it if the question involved a fundamental right?
If you were asking the question that Justice Alito asked, which is, what's your sexual practices in the bedroom, if there are security checks against you disclosing it, you are saying even that would be okay?
Mr. Katyal: I could imagine a circumstance far afield from this one in which the Government's just mere collection of information about sexual practices might burden the exercise of those rights.
I'm saying it's not at all present here, and I don't think the Court should get into it.
But that's a really different question than the one here, which is: Is there some free-standing right to constitutional privacy that is unburdened by the fact that there are protections against the disclosure of information?
Here, the Privacy Act imposes strong protections against the disclosure of information.
And so what's left is a very residual interest in the part of the employees.
Justice Sonia Sotomayor: Don't -- this is a bit unsatisfying.
Because you start by saying to us, as long as there are some nondisclosure protections, then virtually any question, whether it impinges a fundamental right or not, would be okay, because there's -- I don't even know what the Government's interest is in asking every question it wants to.
There has to be a need for a set of questions, doesn't there?
Mr. Katyal: Well, I could imagine an as-applied challenge to, for example, you know, the hypothetical on sexual practices or whatever.
I do think, as Justice Scalia said, the real check on that is the political process check.
The fact is that the Government doesn't ask those kinds of questions, and to the extent it ever did, the Court could confront that in an as-applied challenge.
Justice Ruth Bader Ginsburg: I still don't see why that -- why this is before us, because the Ninth Circuit said some of this form is okay, most of Form 85 is okay, and some of Form 42 is okay.
I thought it was only the questions under 7 and 8, the open-ended questions.
I didn't think the Ninth Circuit had enjoined anything other than those questions.
Mr. Katyal: Those questions, Justice Ginsburg, are really the heart of the form.
I mean, those are the most -- in many ways the most important questions, because they're the ones that employers have to ask because they don't know the weaknesses in an individual applicant's background.
Justice Anthony Kennedy: There are a number of statements in, I guess, the concurrence from the denial of en banc, explaining how JPL is fairly open, and it is close to the Pasadena courthouse.
Pasadena residents and judges visit JPL often.
Are there any statements of fact that you don't agree with that are not in the record, other than the matrix question?
Leave that aside.
Mr. Katyal: Yes, I would say a few things.
Number one is I think that the -- the concurring judge did, I think, underestimate how important security is there.
First of all, there are armed guards when you are coming in.
It is not the campus-like atmosphere.
It's not like a campus that I'm familiar that she described.
The information at the debate at JPL is sensitive, quite sensitive, both, you know, in terms of scientifically and with respect to our nation's secrets.
And the even more important point about this is the badge that the Plaintiffs are seeking access to don't -- doesn't just give them access to JPL.
It will also give them other access to all other NASA facilities.
And it's such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it is being repaired and readied for launch.
So this is a credential not just for JPL and getting onto JPL, but other places as well.
If I could reserve the balance of my time.
Chief Justice John G. Roberts: Thank you, General.
ORAL ARGUMENT OF DAN STORMER ON BEHALF OF THE RESPONDENTS
Mr. Stormer: Mr. Chief Justice, and may it please the Court:
The issue as now characterized is really how far may a Government go, may this Government go, to intrude into the private lives of its citizens, both in positions that do not involve sensitive issues, classified issues, national security issues, or positions of public trust?
Justice Antonin Scalia: Mr. Stormer, what provision of the Constitution are you relying -- I looked at your table of authorities in your brief, and you have cases listed, you have statutes listed; there is not a single citation anywhere in your brief to a provision of the Constitution.
What provision of the Constitution are you relying on.
Mr. Stormer: It would mostly fall--
Justice Antonin Scalia: I think it's a very nice thing that the Government shouldn't ask intrusive questions.
I also think that it's a nice thing that the Government should pay a living wage to its employees, but I don't feel authorized to go around saying how much the Government should pay each of its employees because there is nothing in the Constitution about that, and the question is left to Congress.
What do you rely on in the Constitution that enables me to decide how much intrusiveness is too much, rather than leaving that to Congress?
Mr. Stormer: --It would flow from the ordered concept of the liberty component of the Fifth Amendment, as well as the First--
Justice Antonin Scalia: The Fifth Amendment, okay.
Which says no person shall be deprived of what?
Mr. Stormer: --Of life -- I mean, no person shall be deprived of due process of law, and then the last--
Justice Antonin Scalia: Due process of law.
Mr. Stormer: --refers to the concept of, the ordered concept of liberty.
Justice Antonin Scalia: All right.
That -- that's what I thought.
You are talking about substantive due process here.
Mr. Stormer: Well, the Whalen case, the Nixon case, and to some extent, the Reporters Committee case refer to this concept of privacy.
And they are, in fact, vague, but they do talk about the concept of privacy as being the right to control information about oneself.
And -- and both -- and all of the--
Justice Antonin Scalia: I mean, I like that, but I just don't see it anywhere in the Constitution.
That's all I'm taking about.
Mr. Stormer: --Well, I -- there -- those cases, in fact, do not refer to a term called "informational privacy".
Those terms have grown from the various cases that have flown -- flowed from the determinations in Whalen and Nixon and, to some extent, Reporters Committee.
Justice Sonia Sotomayor: So that right is subject to what level of scrutiny?
Is it always strict scrutiny?
And how do you square Whalen and Nixon's balancing with strict scrutiny?
Mr. Stormer: The -- the standard would be -- I think the appropriate standard was applied by the Ninth Circuit, which is a legitimate State interest narrowly tailored to meet that need.
In this case, there is some -- like the Von Raab case, which is not cited in our brief but which is a Fourth Amendment case, the -- this Court used a compelling State interest standard for a Fourth Amendment invasion.
And in that case, the Court remanded on the issue of whether or not the positions involved classified or sensitive materials.
Justice Stephen G. Breyer: So what is your view of what the liberty -- you are saying that the words in the Constitution that protect the right that you claim was violated are the words, "No person shall be" -- I guess --
"deprived of life, liberty, or property without due process of law. "
I guess you mean the word "liberty".
Mr. Stormer: That's correct.
Justice Stephen G. Breyer: All right.
And in your words, it is liberty -- define it.
Liberty to what?
Mr. Stormer: Liberty to control information about oneself.
The liberty to--
Justice Stephen G. Breyer: There is a right to liberty to control information about oneself?
Mr. Stormer: --Without governmental intrusion.
Justice Stephen G. Breyer: All right.
And all information?
Mr. Stormer: Well there--
Justice Stephen G. Breyer: Liberty -- there is a liberty to control all information?
Protected from -- from what?
From the State?
The State doesn't have a right to give you any -- get any information about you?
On a driver's license?
It's -- when does it come into play?
Mr. Stormer: --It comes into play when the Government, the State, seeks to intrude and obtain information from an individual.
The -- the--
Justice Stephen G. Breyer: So the fact that the Government says -- I go and I want my driver's license, and they say, fill out the form, we want to see how you -- if you can drive or not, that potentially could violate the Constitution?
Mr. Stormer: --Well--
Justice Stephen G. Breyer: Potentially.
It might not, because it might be justified, but each such case would have to be justified.
Is that -- is that your theory?
Mr. Stormer: --Any intrusion into private lives would have to have some--
Justice Stephen G. Breyer: It says "liberty".
The liberty, you said, was liberty to control information about yourself.
Mr. Stormer: --That was the--
Justice Stephen G. Breyer: So I want to know how that works.
Every time anyone in the Government asks a question about you personally, of course, it wouldn't be unconstitutional.
But every time it would have to be a justified thing; is that -- is that your theory?
I'm just asking.
Mr. Stormer: --That -- yes, it is.
Justice Sonia Sotomayor: So that's all information about yourself?
Mr. Stormer: Well--
Justice Sonia Sotomayor: I think what Justice Breyer is getting to and that I'm trying to figure out is, you've used the word "privacy".
What does privacy relate to?
Mr. Stormer: --Privacy relates, in this case, to the--
Justice Sonia Sotomayor: No, I'm talking about -- answer his broad question, which is -- you've defined the constitutional right to information about yourself.
Mr. Stormer: --Correct.
Justice Sonia Sotomayor: Is that all information about yourself, including your date of birth, your Social Security Number, your -- where you live, where you've gone to school, who are your friends, who your references are?
Because as broadly as you have defined that, it would include all of that.
Mr. Stormer: It -- the -- the nature of what is included can be intruded upon based upon a governmental need.
So if there is a rational basis for knowing Social Security Numbers, driver's license, census information, that type of information, then -- then there is not an issue.
Chief Justice John G. Roberts: So this gets back to Justice Sotomayor's earlier question.
You said if there is a rational basis, so is that the test?
Mr. Stormer: The test--
Chief Justice John G. Roberts: No matter what type of information?
I suppose it's harder to show a rational basis when you get into certain areas that -- that concern you, but is it a rational basis test?
Mr. Stormer: --In this case, I think it is a legitimate State interest, narrowly tailored to meet that interest, Your Honor.
Chief Justice John G. Roberts: But in the case of a date of birth for a driver's license, you say it's rational basis?
Mr. Stormer: Yes.
Justice Stephen G. Breyer: So how do we decide?
I am a little interested, if you could spend two or three minutes elaborating this.
A number of laws, Federal laws, I imagine the regulations fill this room, and I think many -- maybe more, maybe several rooms.
And many of them involve asking people for information.
And the number of forms that ask people for information, I guess, about themselves, might fill several rooms.
And I can imagine in a country of 300 million people, you would find someone objecting to many of the questions.
And so how is the system supposed to work, in your view, where judges will decide whether a particular question -- I'm not saying you are wrong.
I just wanted to get an idea from you as to how this legal system works, where any question asked by the Government about a person is potentially subject to challenge as unconstitutional.
You and I will agree that many are fine.
But you are worried about some that aren't fine.
How does it work, the system, distinguishing the ones from the other?
Mr. Stormer: Well, this Court has done much of that already in a whole history of cases: Contraception, procreation, marriage, sexual relations, family relations.
Justice Sonia Sotomayor: The fundamental rights issue that the Sixth Amendment identified, are those the questions that are subject to that greater scrutiny?
Mr. Stormer: The -- the rights that go -- the questions that go to those types of -- which could elicit that type of information.
For instance, on Form 42, if they said, tell us any adverse information you have about this person, which includes any other matters.
This could be -- they could respond with saying,
"Well, I don't like the way he -- how many kids he has. "
"I don't like his religion. "
"I don't like his sexual practices. "
Justice Ruth Bader Ginsburg: But isn't that question, that kind of open-ended question, routinely used in employment situations?
That is, the employer wants to know: Is there any adverse information about this person?
Doesn't know which question to ask, because there's a whole -- many things that could be relevant.
So are you suggesting that that kind of question is off-limits to the Government, although it is routinely used in other employment sectors?
Mr. Stormer: It is not routinely used in employment sectors where there is allowed to inquiry -- inquiry into non-employment-related--
Justice Ruth Bader Ginsburg: Well, it has a legend on the top.
Everything that we are asking you is meant to -- to determine suitability for employment.
So they want to find out information relevant to suitability for employment.
Mr. Stormer: --And for security clearances.
Those are the two issues.
Justice Anthony Kennedy: Well, I -- I have to agree with the implication of Justice Ginsburg's remark, at least what I imply from it.
Look at the private employment sphere.
It seems to me that for a sensitive position, a bank who has people taking care of -- its employees taking care of other people's money, or the medical profession, that the employer could be sued and would be remiss if it did not ask this question.
Do you know anything adverse about this person whom we are going to hire for a very sensitive position?
This is done all the time, and we do it with the -- a judge said below, with our law clerk.
Mr. Stormer: That would be exactly my point, Your Honor.
It is in those situations where there's sensitive issues, you are allowed to inquire based on the need.
But here, they are inquiring the snack bar worker, the -- the bus driver, the gift shop operator, are -- are required to respond to these questions.
The GS-4 interior department clerk.
The Government's position is all of those are subject to this same type of inquiry.
Justice Samuel Alito: I don't see what the alternative, as a practical matter, is to asking this sort of open-ended question.
The -- the alternative would seem to be to try to compile a list of every possible thing that the -- the person might do that would raise serious questions about suitability for employment or would be disqualifying for employment.
And that seems to be impractical.
There's almost no limit to the sorts of things that might be relevant in that respect; isn't that right?
Mr. Stormer: This goes to the very basic question of: Why does the Government need to know this information for these individuals, most of whom have been there for 20 to 30 years?
The Government can't show a single instance of any of these individuals doing anything that would require any of the type of scrutiny--
Justice Ruth Bader Ginsburg: Are you then saying that these people have to be grandfathered or grandparented because they worked for 20 years--
Mr. Stormer: --I am not, Your Honor.
But the Government has some burden to show that -- a need to inquire into these privacy areas.
It needs to know if you have gone to the Betty Ford--
Justice Ruth Bader Ginsburg: --But you are making a -- you said that these people have worked there for 20 years.
Are they different from the new employee?
Are you suggesting it's okay for the new employee, but not okay--
Mr. Stormer: --I am not.
Justice Ruth Bader Ginsburg: --for the person who is already in the job?
Mr. Stormer: I -- I am not.
The -- the difference between this case and, ultimately, what was allowed in both Whalen and Nixon -- excuse me, particularly in Whalen -- is that there was some overarching societal need to have this information.
Justice Samuel Alito: Well, suppose the person who works at the -- at the gift shop, or the snack bar -- I think that's what you mentioned -- has a big sign on his front lawn that says,
"I hope the space shuttle blows up. "
Is that information the Government has a legitimate reason to get?
Mr. Stormer: I would agree that -- that in that instance,
"I hope the space shuttle blows up. "
would certainly implicate some First Amendment issues, but the Government should know that information.
Justice Samuel Alito: And now, what's the alternative to acquiring that information through an open-ended question?
Do you have to have a specific question on the form?
Does this individual have a big sign on his front lawn that says--
"-- I hope the space shuttle blows up? "
Mr. Stormer: I wouldn't think that that would be needed.
I think that--
Justice Samuel Alito: Do you see what I am getting at?
I don't see how you are going to do this, other than by asking an open-ended question.
Mr. Stormer: --Only if you need to know the answers.
And for the snack bar worker or the GS clerk-typist, for those types of people who have no access to sensitive information, do not -- it can -- the definition here is that these are noor low-risk -- they are low-risk employees, which is defined as, if they misuse their position, they will have little or no impact on the agency mission.
So we know that these questions are being asked of people who, if they completely misused their position, there will be no impact.
Chief Justice John G. Roberts: So -- just to -- I would like to get back to Justice Breyer's question.
So now you not only have to decide which questions -- they can challenge any question they want and say, this isn't pertinent, but you also have to categorize which employees are being asked that question.
This is a -- SF means "standard form", right?
Mr. Stormer: It does.
Chief Justice John G. Roberts: Well, that -- you know, it's a big government, and they can't tailor every inquiry, every form, to the individual applicant.
Mr. Stormer: It -- it can to the positions.
This -- this -- what is being done now, if they have done 70,000 inquiries, that means -- and 128 issues arose, that means a whole host of people, over 69,000 people, have had to give up information that otherwise they would not have to give up.
Justice Ruth Bader Ginsburg: Are you suggesting that this is no good for government employment?
You were dealing with a contractor here, but this form, as I understand it, has been used for -- for many years for standard government employment.
Is it -- are they okay?
And for nonsensitive positions, are you -- are you arguing just government contractor or are you saying even for the government employee, the person who's hired to work at the snack bar in the Senate, let's say, the Government can't ask these questions?
Mr. Stormer: If I understand Your Honor's question, and I apologize, I -- I think this cannot be asked of -- these questions cannot be asked of people for whom the Government does not have a justifiable need to know that information.
Justice Antonin Scalia: We can handle those details.
My goodness, it's all right there in the Constitution.
And we can decide what -- what employees have to know what, and what questions you can ask them, and how much privacy is too much privacy, right?
Mr. Stormer: Well--
Justice Antonin Scalia: It's a piece of cake.
Mr. Stormer: --The Government is -- claims to be acting as the employer here.
In fact, it is not.
It is -- it's once or twice removed.
But assuming that the Government is the employer, there is a massive amount of waste that is generated by this form.
Justice Ruth Bader Ginsburg: You are -- you are attacking these forms for all Government employment, not just the contractors?
Mr. Stormer: I -- I don't -- it -- I think it would apply to all of those people who are in nonsensitive positions.
This is the Government's definition, it's not our definition.
We chose the Government's definition.
And if it is a low-risk or a no-risk employee, then the Government doesn't have a need to know.
A private employer could not--
Chief Justice John G. Roberts: But you don't know -- you don't know if it's a low-risk employee until you find out what he -- he or she is like or what the neighbor thinks.
Well, you know, he keeps practicing planting bombs or something.
I mean, then he becomes a high-risk employee.
You don't know until you get the information.
That's the reason you ask for it.
Mr. Stormer: --In the context of these employees for this particular case, we absolutely know, because the Government went through and of the 7,500 employees there, it categorized 97 percent as low or no-risk employees.
So, we know in this context where they are already employed and it's just a badging procedure.
What the Government did here--
Justice Antonin Scalia: Excuse me.
I thought -- I thought that your friend said that the badge enables you to get within 10 feet of the shuttle?
Mr. Stormer: --I don't know that for a fact.
I do know that--
Justice Antonin Scalia: Well, do you contradict that?
And if it's so, how can you say that these people are low-risk employees?
Mr. Stormer: --Because the Government says they are low or no-risk employees.
This is a campus atmosphere.
I have been there.
I have seen it.
If you want -- if I want to go on, I just call up Dr. Nelson and say, can you get me on?
If I'm on there, and my car breaks down and I call up and say can the AAA auto come on, I just call the gate and the AAA auto person, they say, yeah, just let him in?
The -- the people who have -- bring supplies on they just come on.
This is a campus where they don't have--
Justice Antonin Scalia: Does al-Qaeda know all this stuff?
Mr. Stormer: --I'm sorry.
Justice Antonin Scalia: Does al-Qaeda know this?
Mr. Stormer: Well, the interesting response to that, Your Honor, is that it wouldn't matter if they knew this, because it's open transparent science by a civilian agency in a campus atmosphere.
This is not a -- weapons, national security--
Chief Justice John G. Roberts: What you are saying -- what you are saying is it may not make much sense to have the people here fill out Standard Form 85, but the Government can't tailor its open -- opening security form to people that -- you know, maybe down the road at a different NASA laboratory, they do work on more sensitive information.
It's a standard form.
The Government has to do things in a standard way.
Mr. Stormer: --And the Government has a form for those people who work in classified information.
That's SF-85P, SF-85S and SF-86.
The Government can standardize and when it acts as the employer, it has an obligation, because it can't take both it's ability and authority as the Government and -- and overreach into the private lives of its citizens.
The questions that are being asked here would not be allowed for private employers--
Justice Ruth Bader Ginsburg: I'm -- I'm very surprised to hear that.
I thought that -- that if there were in -- in the private sector similar questions?
Mr. Stormer: --Similar but not questions that would go -- you couldn't, as a private employer, say you have to turn over your medical records, you have to turn over--
Justice Ruth Bader Ginsburg: Where does it say you have to turn over your medical records?
Mr. Stormer: --That's in SF -- SF-85 page 6, which is the release.
And all of this has to be inquired into--
Chief Justice John G. Roberts: Under what -- under what law could you -- a private employer not ask for those records?
Mr. Stormer: --In the State of California in the right to privacy.
Chief Justice John G. Roberts: I know we are talking about under general federal law.
Mr. Stormer: Most -- general federal law, I cannot answer that.
Chief Justice John G. Roberts: But it's a matter of statutory law?
Mr. Stormer: Yes -- well, in some States there's a -- where there's a privacy right.
Justice Anthony Kennedy: Question 42, do you have -- pardon me, question 7 on Form 42, the -- the standard one, do you have any adverse information about this person's employment, residence or activities concerning, and so forth, violation of the law?
Are you saying that private employers cannot ask that question?
Mr. Stormer: They can't ask the question--
Justice Anthony Kennedy: The prospective private employer?
Mr. Stormer: --in the context of the release which is SF-85 page 6, which requires that you release your private records, extensive records, residential, retail businesses, where you shop, your educational, your--
Justice Anthony Kennedy: I -- I'm asking whether or not a private employer can ask third persons the question that's at Form 42 question 7.
I thought your representation to me was that private employers cannot ask that question?
Mr. Stormer: --I -- I -- if I said that, Your Honor, I misspoke.
The question goes--
Justice Anthony Kennedy: But that was enjoined by the court below, was it not?
Mr. Stormer: --It was.
Justice Anthony Kennedy: All right.
Mr. Stormer: Question 7 talks about financial integrity, mental and emotional stability, general -- general behavior or conduct or other matters.
If a private employer, in many States, goes into non-employment-related issues, it's -- it's contrary to--
Justice Stephen G. Breyer: What is your view on that question?
There is a famous, funny example that supposedly may be untrue.
Senator Hruska used to ask and say in giving a reference he would write about someone, you'll be lucky if you can get Smith to work for you.
That's the kind of thing that you might want to know.
And despite the ambiguity there and it seemed to me that question 7 sort of drove at that.
And so, but they did enjoin it, so in your view, is that aspect of the injunction wrong.
Mr. Stormer: --No.
Justice Stephen G. Breyer: All right then.
Well, then, if it's right, why is it right?
Because it seems to me the basic thing any employer would want to know is whether I'm lucky to get this person to work for me, that kind of thing.
Mr. Stormer: Any employer can ask issues that are employment related and based upon the nature of the job.
You can ask those questions, but any employer can't require as a condition of employment that you sign a release that gives them all manner of information as to where you shop, how you shop--
Justice Stephen G. Breyer: What is the specific thing about question 7 that you think is unlawful or should be changed?
What words do you object to in that question?
Mr. Stormer: --Well, other matters, general behavior or conduct, certainly.
Justice Stephen G. Breyer: So they cannot ask, do you have any information about this person's employment, residence, or activities concerning general behavior or conduct or other matters?
Now, I am an employer and I would like to find out if he's going to do a good job.
So what am I supposed to say, there doesn't seem to be a place here other than that to get into that question.
Mr. Stormer: That's because this question for the types of situations is not needed.
The question that is needed is, what are the characteristics that you feel he has for this job.
Justice Stephen G. Breyer: I see, I see.
Justice Antonin Scalia: Why do you say a private employer could not ask a question of such detail?
Mr. Stormer: Primarily because of the release.
That's the sixth stage of Standard Form 85.
That release just allows--
Justice Antonin Scalia: Why could a private employer not do it?
Mr. Stormer: --Because in virtually every state there are laws requiring the disclosure of private information.
Justice Antonin Scalia: Well, you mean that legislatures take care of these matters?
I find it curious that in order to establish a Federal Constitutional right, which turns this area over to this Court, you invoke laws that have been democratically enacted by State legislatures.
If indeed that's the criterion, maybe you don't need us.
Mr. Stormer: I -- the reason I invoke that is because the Government has stated that any private attorney can ask these questions, and that's a misstatement of the law in most states.
Justice Samuel Alito: Can I ask you this question about the question on drug treatment.
Would it be unconstitutional for the Government to take the position that to require an employee or applicant for employment to disclose whether this individual had violated Federal or State drug laws, and take the position that if the person gave an affirmative answer that was disqualifying, would that be unconstitutional?
Mr. Stormer: If they've said I violated State or Federal laws, not on its face so long as if it said voluntarily, you may show mitigation that -- that would show that this is not a problem, it would make you unfit for the job.
Justice Samuel Alito: So they could say, have you bought, sold, used drugs in violation of Federal or State law?
If so, you are disqualified.
Unless you can show that you have had treatment, and then it's up to you to disclose whether or not you had treatment.
Mr. Stormer: That's correct.
Justice Samuel Alito: What's really the difference between that regime and what you have here?
Mr. Stormer: The difference is here is because it is compelled.
It's a compelled disclosure and not offering you the opportunity to make a showing.
And in this concept the appeal right that you have from this is not a robust appeal right that was described.
It's a very limited appeal that is internal to the department, that does not have a right to confront or cross examine.
Justice Ruth Bader Ginsburg: Can I ask you to clarify your understanding of what has been enjoined?
We know Form 85, but Form 42, you mentioned the releases.
I thought that the Ninth Circuit's order covers lots of question 7 and perhaps question 8, I didn't see, is there something, maybe I missed it, that says they can ask for release of the records?
Mr. Stormer: There was in the emergency order specific reference to the release.
There was not in the final order, but the question can't -- has to be read in the context of the release, because that's how they get to -- if you go to the Betty Ford Clinic.
Justice Ruth Bader Ginsburg: They didn't say, Government, you can't ask for the release?
Mr. Stormer: They did not.
Justice Ruth Bader Ginsburg: They say you can't ask open-ended questions?
Mr. Stormer: That's correct.
They did not say that.
But it has to be implicit in their ruling because in many of the case--
Justice Ruth Bader Ginsburg: If somebody is going to be enjoined, I mean, it can't be implicit in the ruling if you were enjoined.
Because it has been stayed you don't have a formal order, but you can't say, well, it is implicit in the how many page opinion.
Mr. Stormer: --The -- well, in the Court below, for instance, the argument that the Government made was that they needed to have the medical records, not that they just needed this information, that they needed to have the medical records.
The question that logically flows is what can they do with this information once they learn that you had counseling?
Then I guess they can ask you who the counsellor was, what you told the counsellor.
What was the purpose of--
Justice Ruth Bader Ginsburg: As I understand this process, this is not an oral interview.
You fill out a form, you meet somebody and they ask follow-up questions.
This is -- this handles on the papers, right?
Mr. Stormer: --It's handled.
First you reveal the information and then there are 22 approvers at JPL, civilians who are not employed by NASA.
They review it and then it goes to NASA and then there is a whole series--
Justice Ruth Bader Ginsburg: Yes.
But is there an oral interview in this process?
Mr. Stormer: --There is not.
Justice Ruth Bader Ginsburg: So then they wouldn't say -- it says here, so I'm going to ask this, that and the other thing.
It's a written--
Mr. Stormer: I may have misspoken.
It doesn't preclude an oral interview.
I am not aware of oral interviews having been made or taken.
Justice Anthony Kennedy: You say there are 22 people in JPL that are involved in the employment?
Mr. Stormer: There are 22, the Government has approved 22 so-called approvers who are at JPL who look over -- who are eligible to look over these forms and the responses to the forms.
Chief Justice John G. Roberts: What do you understand the scope of the preliminary injunction to be?
Does it bar the solicitation of this information throughout the Ninth Circuit or only with respect to JPL?
Mr. Stormer: At this point it only applies to -- well -- this is not before the -- part of the record, but when it went back to the district court, the district court and all parties agreed that it would only apply -- that HSPD-12 would be limited to these 28 individuals, that investigation.
Chief Justice John G. Roberts: Thank you, counsel.
General Katyal, you have four minutes.
REBUTTAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE PETITIONERS
Mr. Katyal: Justice Ginsburg, you had asked earlier whether this was narrow decision on just a couple of questions and I think that the argument that you just heard from my friend illustrates that it is not.
He asks for a "free standing right to control".
Justice Ruth Bader Ginsburg: Whatever he asks, we were reviewing a judgment.
Mr. Katyal: And the judgment--
Justice Ruth Bader Ginsburg: And the judgment is not the universe, it's certain questions can be.
Mr. Katyal: --And the judgment is based on the following rationale, this is from the petition appendix on page 18A from the Ninth Circuit.
"If the Government's actions compel disclosure of private information, has the burden of showing that its use of the information would advance a legitimate State interest and that its actions are narrowly tailored to meet the legitimate interest. "
Now, that reasoning was used to invalidate a question, as Justice Kennedy said on Form 42, that employers ask all the time, banks ask it and the like.
And it's a -- it's used to invalidate parts of a standard form that the Government uses day in and day out and that employers generally use in order to make employment decisions.
Justice Sonia Sotomayor: Are you conceding you can't meet that standard or are you saying that the Ninth Circuit misapplied that standard?
Mr. Katyal: No, we are not conceding that at all.
I do think we would meet the standard, but our point is it's the same point as in Engquist, in the Chief Justices's opinion in Engquist v. Oregon.
Forcing the Government to have to march into court every time to justify a question here or an employee there or soup clerk here or whatever, all of those different inquiries pose practical burdens on the ability of the Government to operate.
Justice Sonia Sotomayor: Do you think there is something wrong with the Government having to explain why it seeks information?
I mean, I would think that would be fairly simple in virtually every situation.
I ask that question because that begs the question of can you ask anything you want regardless of why?
Mr. Katyal: --I think that political process ensures that the Government generally has to answer that question at large, but in order for the Ninth Circuit's reasoning to apply it would permit any individual person here or there to ask the question.
Justice Ruth Bader Ginsburg: I don't see how that's so because at least if you are in the Ninth Circuit, you know that the Ninth Circuit has blessed all the questions on that form but one.
Mr. Katyal: That's only because--
Justice Ruth Bader Ginsburg: You could raise the question, but you would be out of court in a minute.
Mr. Katyal: --Justice Ginsburg, I think that's only because the Petitioners here only challenged certain questions.
I could imagine other Petitioners challenging other questions.
Justice Ruth Bader Ginsburg: I thought they did in the lower court, but abandoned it here challenging the question about the drug use?
Mr. Katyal: The drug use piece, but I could imagine all sorts of inquires about other aspects of the form and indeed the rationale, the language that I just read to you is a road map for anyone to be able to come in and say, well, this question isn't necessary for me because I got a background clearance before and I'm rehired or whatever.
And it would be a huge practical burden in the same way as recognizing the cause of action in Engquist was a practical burden.
Instead we think what the Court should do here is what it did in Whalen, which is recognize governments collect information all the time.
Justice Samuel Alito: How much of the information that's at issue here can be released and to whom?
Mr. Katyal: The information which can be collected that is released here is governed by the Privacy Act.
And so there are, the appendix to our brief lists out precisely to who they could be released to, and that has been around since 1975.
We have seen virtually no complaints about the Government disclosing this type of background information on SF-85.
Justice Ruth Bader Ginsburg: Is that also within the Government itself?
I know the Privacy Act is the Government can't disclose, but how about checks and when you have a back Government or checks about circulating the information within the Government?
Mr. Katyal: If it is for, if it is to further the Government purpose for which the information is collected it can be distributed to other folks in the Government.
There are restrictions on that and they are specified in the Privacy Act and they are quite extensive.
To the extent that the Court is concerned that there is something that isn't robust enough in the Privacy Act, we suggest that can wait for an as-applied challenge down the road when information is disclosed.
We don't think it will, but if heaven forbid that happens, that's a basis for the as-applied challenge down the road.
But here what they are asking you to do is invalidate questions and forms that the Government asks all of it's employees and now just wants to ask contractors.
Chief Justice John G. Roberts: Thank you, General.
The case is submitted.
Justice Alito: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
Candidates for Federal Civ -- Civil Service have long been required to undergo a standard employment background check.
Several years ago, the Government extended this requirement to federal contract employees who require long-term access to Government facilities.
The respondents in this case who were the plaintiffs below are Government contract employees at a NASA laboratory, the Jet Propulsion Laboratory.
They challenged two aspects of the Government background check.
Their first challenge concerns a question on the standard form that asks employees about any treatment or counseling that they have received for recent illegal drug use.
The second concerns a series of open-ended questions on a form that the Government sends to the employees designated references.
The respondent's claim that this inquires violate a constitutional right to informational privacy.
The Court has considered similar arguments in two other cases, Whalen versus Roe and Nixon versus Administrator of General Services both decided in 1977.
In both of those cases, the plaintiffs claimed that the Government's collection of their personal information violated the Constitution.
This Court rejected those arguments, however, because the practices at issue were reasonable and because the information collected was subject to protection against the public disclosure.
We take the same approach in this case that the Court took in Whalen and Nixon.
We assume without deciding that the Constitution protects some right to informational privacy.
We hold, however, that the challenged portions of the Government's background investigation do not violate such a right in this case.
These inquiries are reasonable and they further the Government's interest in managing its internal operations and responses to the challenge, inquiries are shielded from public disclosure by the Privacy Act.
Those protections are sufficient to satisfy any privacy interest that may arguably be rooted in the Constitution.
We reversed the Court of Appeals' contrary judgment and remand the case for further proceedings.
Justice Scalia has filed an opinion concurring in the judgment in which Justice Thomas has joined.
Justice Thomas has filed an opinion concurring in the judgment.
Justice Kagan took no part in the consideration or decision of this case.