“Judicial Minimalism” (at Least of One Sort), Pro and Con

Today’s NASA v. Nelson included a fascinating exchange between Justice Scalia (joined by Justice Thomas) and Justice Alito (writing for the rest of the Court except for Justice Kagan, who was recused). The Court was faced with the question whether a constitutional right to “informational privacy” bars the government from conducting certain investigations of employees and contractors. The majority assumed without deciding that such a right exists, but concluded that any such right would not be violated in this case (though without setting forth much of a test for lower courts and government officials to apply).

Justice Scalia would have held that no such general right (as opposed to a specific right to be free from unreasonable searches and seizures) is secured by the Constitution. He explained why he would so hold, and then went on to say:

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 judicialmaximalism. 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, andeven 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.

The majority responded:

[Justice Scalia’s opinion disagrees with our approach of assuming for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance] and would instead provide a definitive answer to the question whether there is a constitutional right to informational privacy…. [It] expresses concern that our failure to do so will “har[m] our image, if not our self-respect,” and will cause practical problems. 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 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,” 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.

I take it, by the way, that the majority’s position does not rest simply on the lack of briefing on the question whether there is a constitutional right to informational privacy, since that could have been taken care of by an order to provide such briefing (and, if necessary, reargument); I assume that the majority more broadly believes that the underlying constitutional question should not have been decided in this case.