Category: Supreme Court


NASA v. Nelson: The Merits of the Case

As I wrote in a previous post, the U.S. Supreme Court granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008), a case where NASA required employees to answer questions about very private matters.  The U.S. Court of Appeals for the 9th Circuit granted a preliminary injunction because the questions violated the constitutional right to information privacy.

I believe the Supreme Court will reverse.  As I argued in my previous post, I hope it will not reverse based on a conclusion that the constitutional right to information privacy doesn’t exist.  Instead, the 9th Circuit’s opinion expands the constitutional right to information privacy far beyond its current contours.

I. The Constitutional Right to Information Privacy

In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.”  This latter interest has become known as the constitutional right to information privacy.

Whalen involved a challenge to a reporting requirement to the government of certain prescription drugs (many of which were considered controlled substances if not properly prescribed).  The Supreme Court concluded that because the records would be kept confidential and highly secure (the storage facility had many security safeguards), the plaintiffs’ rights weren’t violated.

The focus of the constitutional right to information privacy is a duty to avoid disclosure. The right allows disclosure if the government has a compelling interest that outweighs the privacy interest.  So the way courts address the constitutional right to information privacy is to balance the government’s interest in disclosure against the plaintiffs’ interest in privacy.

But NASA v. Nelson didn’t involve disclosure.  It involved collection. The constitutional right to information privacy isn’t focused around questioning people or gathering information — it is about protecting against unwarranted disclosure. The only other case I’m aware of where a court has used the constitutional right to information privacy to bar information gathering is another 9th Circuit case — Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1269 (9th Cir. 1998).  There, a government lab tested prospective employees blood and urine for syphilis, sickle cell anemia, and pregnancy without their knowledge and consent.  The 9th Circuit held that the testing violated the constitutional right to information privacy, concluding: “Although cases defining the privacy interest in medical information have typically involved its disclosure to ‘third’ parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests.”

But the 9th Circuit’s expansion of the constitutional right to information privacy, however normatively desirable, is not consistent with the bulk of the caselaw.

The only way I see a potential violation of the constitutional right to information privacy based on the probing questions NASA asked is if the information wasn’t protected with adequate security after being collected or if there was an indication by NASA that it would disclose the information.

The cert. questions, it is explicitly noted that the information is “protected under the Privacy Act, 5 U.S.C. 552a.”

My sense is that if the Supreme Court wants to rule narrowly in this case, it can do so as follows:

1. The constitutional right to information privacy protects against unwarranted disclosure of personal information.  It doesn’t protect against the collection of data.

2. The government is under a legal obligation pursuant to the Privacy Act to avoid disclosing the data.

3. The plaintiffs can prevail only if they show that the government fails to provide adequate security to the information.

II. The First Amendment

There is one potential theory that could protect plaintiffs — the First Amendment.   The Supreme Court’s grant of cert. focuses on the constitutional right to information privacy, so I doubt the Court will reach the First Amendment issues.  But in Shelton v. Tucker, 364 U.S. 479 (1960), the Court held that the First Amendment right to free association was violated by asking overly broad questions for state employment as teachers.

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NASA v. Nelson: Is There a Constitutional Right to Information Privacy?

The U.S. Supreme Court has just granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008).  In this case, NASA required employees to undergo background checks and answer questions about very private matters,including “any adverse information” about financial integrity, alcohol and drug abuse, and mental and emotional stability.  Plaintiffs, a group of “low risk” contract employees, sought a preliminary injunction that the investigation violated their constitutional rights.  The U.S. Court of Appeals for the 9th Circuit granted the injunction.

There is a lot at stake in this case, for it potentially involves whether or not a constitutional right exists — the little-known constitutional right to information privacy.  Despite its obscurity, this right is recognized by the vast majority of federal circuit courts and there are scores of decisions involving this right.

Here are the issues cert. was granted on:

1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

The cert. questions are narrowly posed, so there’s hope the Supreme Court will not eliminate the right.  But I see it as a possibility.  Ultimately, I believe the following:

1. The constitutional right to information privacy does (and should) exist.

2. The court’s holding in NASA v. Nelson constitutes a big expansion of the constitutional right to information privacy.  It doesn’t follow from most of the cases interpreting that right.

3. There may be a First Amendment argument to support the plaintiffs.

I will address the first contention in this post, and the other two in a subsequent post.

The constitutional right at issue is a little-known spinoff right to the constitutional right to privacy, most famously declared in Griswold v. Connecticut, 381 U.S. 478 (1965) and Roe v. Wade, 410 U.S. 113 (1973).  In these cases, the Supreme Court recognized that the Constitution protects a “right to privacy” grounded in the First, Third, Fourth, Fifth, and Ninth Amendments.  The Supreme Court issued an extensive line of cases involving the constitutional right to privacy, and these cases have generally involved freedom from government interference in making certain kinds of private decisions about one’s health, contraception, child-rearing, and abortion.

The constitutional right to information privacy emerged in a case called Whalen v. Roe, 429 U.S. 589 (1977). The case involved a government record system of people taking prescriptions for certain medications. Although the government promised that the information was confidential and secure, the plaintiffs feared the possibility of the information leaking out.

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A Whopper of an Assumption in Free Enterprise Fund v. PCAOB

In his dissent in Free Enterprise Fund v. PCAOB, D.C. Circuit Judge Brett Kavanaugh characterized the SEC – Public Company Accounting Oversight Board (PCAOB) relationship as “Humphrey’s Executor squared.” His analysis assumes that two firewalls shield the PCAOB’s exercise of executive power from presidential control. First, PCAOB members can be removed only for cause by SEC commissioners. That’s clear enough. Second, SEC commissioners can be removed only for cause by the President.

The strange thing is that no statute says that the President may remove SEC commissioners only for cause. The idea that the President may not remove SEC commissioners except for cause turns out to be only a whopper of an assumption. Removing that erroneous assumption, there is only the PCAOB-SEC firewall to presidential control of the PCAOB and so understood that arrangement looks no worse than Humphrey’s Executor to the first power. Unless the Court is prepared to abandon Humphrey’s Executor altogether, this part of the challenge looks like a loser at this point in time.

The significance of the assumption was not lost on the Court during oral argument.

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The Yale Law Journal Online: The Justice as Commissioner: Benching the Judge-Umpire Analogy


The approach of viewing federal judges in the United States as baseball umpires has gained traction with the recent nomination processes of the Supreme Court, and sparked debate in both legal academia and across the political spectrum. The Yale Law Journal Online is therefore pleased to announce the publication of The Justice as Commissioner: Benching the Judge-Umpire Analogy by Aaron Zelinsky (Yale Law School). Mr. Zelinsky offers a timely assessment and critique of this analogy, as well as alternatives to envisioning the role of the Supreme Court.

Preferred citation: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010),


Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence

I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.

I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.

This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.

For those interested, here is an abstract of the paper: Read More


Who Wrote Synar? A Judge Who Types and Why It’s Important

In Synar v. United States, a per curiam three-judge district court held that the Gramm-Rudman-Hollings Act violated the separation of powers because the statute had given the Comptroller General executive powers and Congress previously held the qualified power to remove the Comptroller for cause. Chief Justice Burger’s majority opinion in the direct appeal, styled as Bowsher v. Synar, very substantially relied on the district court’s formal analysis — citing and quoting from it several times — that the congressional removal power made the Comptroller General “here-and-now subservient” to Congress.

Academics and commentators (including Anthony Lewis) either speculated or assumed that of the three judges on the panel — Oliver Gasch, Norma Holloway Johnson, and then-D.C. Circuit Judge Antonin Scalia — Scalia most likely penned the per curiam opinion. Amy Spare, Villanova Faculty Services Librarian, recently unearthed for me an unappreciated oral history of the late honorable Oliver Gasch that ends the speculation.

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The Newest Scottsboro Boy

Hear the words “Scottsboro Boys” and what comes to mind is the picture of southern injustice.   Nearly a dozen black teenagers taken off a train in Alabama in 1931 and accused of raping two white girls.  The sheriff calling out the militia to protect the boys from a mob lynching.  The defendants, illiterate young men whose families resided in other states, held under military guard.   A summary trial held six days after arraignment.  The boys tried without counsel.  Each convicted and sentenced to death.  The case successfully challenging their conviction, Powell v. Alabama, is central to our modern conception of the requirements of due process for criminal defendants.

Fast forward 80 years and Jeffrey Skilling, former president and chief operating officer ofcollapsed energy giant Enron, is the newest Scottsboro boy.  Skilling’s attorney argued on Monday before the U.S. Supreme Court that his client was tried and convicted in Houston in what amounted to a mob atmosphere.  Skilling, was convicted of securities fraud, conspiracy and insider trader for actions he took to cover up the financial collapse of Enron, which resulted in losses estimated at tens of billions of dollars for Enron shareholders.  Thousands of Enron employees lost their retirement funds.  Skilling was sentenced to 24 years, which he is serving in a minimum security prison.  He challenges his conviction on the grounds that the crime of “honest services fraud” is unconstitutionally vague, and on the grounds that he was tried and convicted amidst an atmosphere of “pervasive community bias.”

It’s true that feelings about Skilling and Enron CEO Ken Lay ran high during those days – especially in Houston.  It’s also true that government surveys indicated that potential jurors in Houston were more likely than those residing outside Houston, to believe that Skilling and Lay were innocent.  Skilling argued, nevertheless, that “overwhelming passions” gripped the pool of Texans from which the jury was selected, stoked by a “media frenzy.”  His prosecution was, according to Skilling, “as dramatic as any in U.S. criminal trial history.” (I’m not sure that the Scottsboro boys, Sacco and Vanzetti, Richard Hauptmann (kidnapper of the Lindbergh baby),the police officers who beat Rodney King, or O.J. Simpson, would agree with that assessment, but history will have to sort it out).  At oral argument, several members of the Court – Justices Sotomayor and Breyer among them – reportedly expressed serious concerns about the trial court’s voir dire of the jury.  The Court may yet find that Skilling – who was represented by some of the finest attorneys in the country, and who reportedly spent more than $30 million dollars on his defense —   is entitled to a new trial in a different venue. Read More


Supreme Court Fever

Yesterday, Tom Goldstein kicked off this year’s speculation about who the next Justice will be (assuming that Justice Stevens retires, which seems highly likely).  His view is that Solicitor General Elena Kagan will get the nod.  I think this is probably wrong.

With respect to this pick (as with every Court nomination), the President will need to make a political calculation.  In this case, part of the choice comes down to “Does he want a smooth confirmation?” or “Does he want to pick a fight with Republicans and excite his base?”  The selection of Kagan would not fulfill the latter goal, as far as I can see, thus her selection makes sense only if the President wants to calm the waters.  And that depends to a large extent on what happens with health care, which is too close to call.  If the health care bill fails, then the President will need something for his base and Kagan would probably be out of luck.  If health care passes, though, then her chances go up.

Even assuming that Kagan’s nomination makes political sense, I think there is a valid case to make against her on the merits.  First, a sitting SG that reaches the Court must recuse herself in many cases during the first year or two of her tenure because of her involvement in the certiorari petitions.  Thus, there may be a significant short-term cost to picking her that would not be true for a sitting judge or an elected official.

Second, I’m not clear that Kagan has been a good Solicitor General.  You could make a decent case that her handling of Citizens United, from the point of  view of those who don’t like the decision, was slapdash both in the initial argument and in the way the issues were framed on reargument.  As the outcome of that case is dear to progressives, I wonder how they will view her lawyering skills upon closer scrutiny.  (To be fair, you could say that no matter what she did the outcome would have been the same, but I’m not sure about that.)


Summary Reversals by the Supreme Court

Other than Citizens United, the most interesting trend of the Supreme Court’s term thus far is the increasing use of summary reversals (in other words, a decision on the merits without full briefing or argument). These are not cases where the Court is just doing a GVR (“Grant, Vacate, and Remand”) in light of a recent decision. Instead, they must be situations where the Justices think that the lower court was so wrong that only a brief per curiam opinion is necessary for reversal and that adding the case to its docket would be a waste of time.

My sense is that this is not a positive development.  Since the grant of certiorari discretion in 1925, it has become axiomatic that the Supreme Court is not in the error correction business.  But that’s what summary reversals are.  If the legal issues involved are sufficiently important to merit the Court’s attention, then they should also be significant enough to deserve full briefing and argument.  Many lawyers criticize the Court for not taking enough cases, but I don’t think the summary reversal procedure is what they had in mind.


The Yale Law Journal Online: Richard Lazarus and Sanford Levinson on the Supreme Court’s Certiorari Process


Concluding its series on proposed reforms to the certiorari process, The Yale Law Journal Online is pleased to present pieces by Richard Lazarus of the Georgetown Law Center and Sanford Levinson of the University of Texas Law School.  Lazarus and Levinson approach the issue of the Supreme Court’s docket composition through a variety of perspectives, and shed light on the ongoing debate over whether the declining number of cases before the Court presents a problem for the American judicial system.

The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic will be a hosting a second conference on the subject on March 23, 2010 at Yale Law School in New Haven, Connecticut.  Further details will be provided shortly.

Preferred Citations:

Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at

Sanford Levinson, Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?, 119 Yale L.J. Online 99 (2010), available at