The Supreme Court unanimously held today that the fact that NASA subjects contract employees to background checks did not violate the Constitution. Samuel Alito’s opinion for the Court, however, is based on a curious premise: It assumed “without deciding” that the Constitution protects “informational privacy.” Since the Court found that the hypothetical right was not violated in this case, it argued that it didn’t need to determine whether the right existed. The majority’s approach led to another expression of the major line of conflict within the Court’s conservatives: the “minimalism” of Alito and Roberts against the preference for clear rules held by Scalia and Thomas. In a concurrence, Scalia mocks the Court for refusing to decide the central constitutional question posed by the case and also lays out a four-pronged critique of “minimalist” jurisprudence.
While the effect of this conflict is often overblown, the general question of minimalism and its value is an interesting one. As I’ve explained at interminable length, I actually think Scalia has a point here. I don’t have a problem with the Court balancing state interests and privacy rights per se, but it’s not clear how one can balance a right without knowing whether the right exists or what it consists of. In particular, I think Scalia is right that while minimalists like to argue that refusing to decide constitutional questions leaves leeway to democratic decision-makers, in practice it just leaves wide discretion to other appellate judges. Even if one disagrees with Scalia’s argument that the Constitution does not provide any right to informational privacy, I think he’s right that the Court has a responsibility to clearly address the question and provide more guidance for lower courts and actors in the other branches.
—Scott Lemieux
