The Washington Post reports the high court also said open-ended questions on a form given to applicants’ references are reasonable and there are adequate safeguards to ensure the information is not released.
Justice Samuel A. Alito, Jr. wrote that in ruling the background checks did not violate a constitutional right to “informational privacy,” the court was assuming such a right existed. According to the Post, Justice Antonin Scalia, in a concurrence joined by Justice Clarence Thomas, said he would have decided the case by declaring flatly that the Constitution does not contain a right to informational privacy, and he castigated the other justices for not examining the question.
Scalia said lawyers for the plaintiffs did not include in their briefs a constitutional reference for the right. Alito contended that since neither the plaintiffs nor the government had challenged the notion of privacy rights, it was unnecessary for the court to make a decision about their constitutional grounding.
The challenge came from 28 scientists and engineers at the Jet Propulsion Laboratory in Pasadena, California, run by the California Institute of Technology under a contract with NASA.
The Post noted that since 1953, it has been mandatory for all potential federal civil service workers to undergo background checks, and the 9/11 Commission recommended that the checks be extended to contract workers as well.
In October 2007, workers at the JPL were instructed to submit to the background checks, but they went to court instead.
The 9th U.S. Circuit Court of Appeals granted them an injunction, saying a question about drug treatment and counseling went too far and expressing concern about the open-ended questions on a form given to an applicant’s references.The high court’s opinion in NASA v. Nelson is here.