Supreme Court Assumes (Without Deciding) That Constitutional Right to “Informational Privacy” Exists in Reversing Ninth Circuit in NASA v. Nelson

The outcome of NASA v. Nelson was never in doubt, but the case posed a significant question of whether to rule broadly or narrowly. Specifically, should the Court take the minimalist approach and assume that the alleged constitutional privacy right in government nondisclosure of personal matters actually exists — and then explain why, assuming it exists, it cannot go as far as the Ninth Circuit took it? Or should the Justices take a more maximalist approach and address in the first instance whether the right actually exists? Justice Alito’s majority opinion takes the former approach. Justices Thomas and Scalia, concurring, take the latter.