Constitutional Putty

By Mike Dorf

In yesterday's SCOTUS opinion in NASA v. Nelson, Justice Alito's majority opinion assumes that there is a constitutional right against government collection and disclosure of private information--what the Court calls "informational privacy"--but that the procedures used by NASA to screen job applicants did not violate that assumed right because: a) the government had a legitimate basis for seeking the information; and b) safeguards are in place to prevent the government from disclosing private information to third parties.

There is no dissent from the result but Justice Scalia, joined by Justice Thomas, goes at Justice Alito's reasoning pretty hard in a concurrence in the judgment.  Much of the Scalia opinion attacks the majority for assuming the existence of a constitutional right rather than first deciding whether it exists and only evaluating the particulars of the case if the answer is yes.  Eugene Volokh nicely excerpts the relevant portions of the concurrence in the judgment and the majority opinion.

On the procedural point, I'll just say that it's hard for me to see why anyone would get so worked up.  Certainly there are circumstances in which it's sensible to assume the answer to one question in order to decide another, and circumstances in which it's better to decide the threshold issue first.  The Court (unanimously and sensibly) said something of this sort with respect to qualified immunity two years ago in Pearson v. Callahan.  I could see how one might think that in NASA v. Nelson it would have been better to decide rather than assume the answer to the threshold question--as Justice Scalia thinks--but it seems a bit over the top to suggest, as Justice Scalia does, that the Court's procedure harms its "image."  I daresay that the vast majority of Americans will never hear of NASA v. Nelson, much less follow the decision procedure with sufficient care for it to have any impact whatsoever on their image of the Court.  Indeed, were it not for Justice Scalia's having called attention to the procedure here, even most Court-watchers would have likely paid the issue no heed.

To my mind, the more interesting action in Justice Scalia's concurrence in the judgment concerns the merits.  Justice Scalia says that there is no right to informational privacy, which, when pressed, the respondents' lawyer had located in the Fifth Amendment's Due Process Clause.  Justice Scalia will have none of that.  After all, he thinks that there is no such thing as substantive due process--except insofar as it incorporates the Bill of Rights, which he accepts because it permits him to strike down state gun control laws of stare decisis.

What about the Fourth Amendment?  In protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," doesn't it obviously manifest a concern with privacy, including the informational sort?  Justice Scalia responds that it does, but he (correctly) notes that a government request that third parties provide the government with information about a job applicant is not a "search" (or for that matter, a "seizure") within the meaning of the Fourth Amendment.  So Justice Scalia is right that the Fourth Amendment itself doesn't protect informational privacy.

Does that mean that nothing in the Bill of Rights protects informational privacy against other methods by which the government might acquire information?  Justice Scalia quotes County of Sacramento v.  Lewis to dispatch this possibility:
Where a particular Amendment provides an explicit textual source of constitutional protection against  a particular sort  of  government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.
Justice Scalia then pithily sums up the foregoing principle from Lewis thus: "Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the  protections  provided by other constitutional provisions."

To my mind, that is a fair use of Lewis, but Lewis itself is profoundly wrong--or at least quite inconsistent with any sensible approach to unenumerated rights.  That's fine for Justice Scalia, I suppose.  He doesn't believe in unenumerated rights--notwithstanding the fact that the Ninth Amendment looks very much like putty.  But he hasn't (yet) persuaded a majority of the Court to abandon substantive due process outside the context of incorporation of the Bill of Rights, and so Lewis should be regarded as highly problematic.  It is at the very least hard to square with the key passage of the opinion widely regarded to be the font of modern substantive due process, Justice Harlan's dissent (on procedural grounds) in Poe v. Ullman.  He wrote:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of  history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. 

Putty indeed.