The Pragmatics of Informational Privacy
The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.
The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.
In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction. Problem was, they clashed over strategy.
Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.
“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired. When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”
Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in. Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.
“The only thing that’s in contention there is the question about treatment or counseling. Nothing else. So why are we talking about the universe of questions that might be asked?” It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.
But the conservatives weren’t interested in narrowness or broadness. Not yet. They wanted to know a little more about this right of “informational privacy” thing.
Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”
Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.
So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch. With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee. Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism. Big mistake.
“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.
And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.
If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.
Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.
But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals. When Stormer conceded that the government should know that information, Alito shot back. If open-ended questions are forbidden, he asked, then how does the government get at that information?
“Do you have to have a specific question on the form?” wondered Alito. One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”
Alito’s point was as funny as it was devastating.