No privacy violation in NASA employment background checks

The Supreme Court continues to sidestep whether the Constitution recognizes a right to informational privacy, ruling in a case against NASA that even if such a privacy right exists, it was not violated through NASA pre-employment background checks.

The case is National Aeronautics and Space Administration v Nelson, decided on January 19. This was a unanimous decision, and it's easy to see why. The plaintiffs objected to the background check which asks the potential employee about past drug use or treatment. The agency can also seek your personal information from schools, employers and others during the investigation. Justice Alito explains that the Supreme Court has never flat-out recognized a right to informational privacy, though the Court has hinted at it over the years in cases like Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of General Services, 433 U.S. 425 (1977), two cases decided by a very different, moderate Supreme Court. What the current Court would do on a clean slate is anyone's guess, but since the government has a strong interest in checking out the backgrounds of potential employees, any such privacy right gives way to the government's need to "ensur[e] the security of its facilities and in employing a competent, reliable workforce."

The real news here is Justice Scalia's concurrence, with Justice Thomas signing on. Scalia's just about had it up to here with the Supreme Court's assumption that the Constitution recognizes a right to informational privacy. Scalia and Thomas do not believe any such right exists, and that it's about time the Court deal with this issue head-on. This lengthy concurrence is a "Scalia special," with sarcastic asides, snide observations and a few good turns of the phrase. Read it if that kind of stuff turns you on.