National Aeronautics & Space Administration v. Nelson
The Court ruled that NASA's background-check questions for contract employees at its Jet Propulsion Laboratory, including a question about drug treatment and open-ended questions to references, do not violate any constitutional privacy right, because they are reasonable employment-related inquiries protected from public disclosure by the Privacy Act.
The decision leaves standard government background checks intact nationwide, without ever deciding whether the Constitution actually protects a right to keep personal information private in the first place.
“We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case.”
The Court's core holding that NASA's background-check questions did not violate any privacy interest.
How it got here: A federal trial court denied a preliminary injunction; the Ninth Circuit reversed and found parts of the background check likely unconstitutional; the government asked the Supreme Court to review.
The Case in Depth
What happened
NASA's Jet Propulsion Laboratory is staffed by employees of a government contractor, Cal Tech, rather than by federal civil servants. After a post-9/11 directive required uniform background checks for both civil servants and contractor employees, JPL workers who had never undergone such screening were told they would lose access to the lab and their jobs if they didn't complete a standard background investigation, including a form asking about drug treatment and letting references answer open-ended character questions.
The question before the Court
Can the government require space-program contract workers to answer background-check questions about drug treatment and let references share open-ended personal information?
Why it matters
Federal contractors and civil servants across the country can continue to be asked standard background-check questions about past drug treatment and can have references answer broad, open-ended questions about their character. Agencies keep a familiar screening tool, and workers must still rely mainly on the Privacy Act's disclosure protections, not a separate constitutional guarantee, if that information leaks.
What changes now
The case is sent back to the lower courts for further proceedings consistent with the Court's ruling, meaning the preliminary injunction against NASA's background-check questions is undone and the challenged screening can proceed. This is a final merits decision on the constitutional privacy claim, though it leaves open whether a constitutional right to informational privacy exists at all, since the Court only assumed one for purposes of deciding the case.
What this does not decide
The Court never decided whether the Constitution actually contains a right to informational privacy at all — it only assumed one existed for the sake of argument. So the ruling does not establish or confirm any such right, and lower courts remain without a definitive answer on the question, as Justice Scalia's concurrence emphasized.
Concurrences and dissents
Concurrence — Justice Scalia
“A federal constitutional right to “informational privacy” does not exist.”Scalia's central disagreement with the majority's assumption that such a right might exist.
Justice Scalia agreed that the background checks are constitutional but would have held flatly that no constitutional right to informational privacy exists at all, rather than assuming one and then finding it not violated. He argued the Court's approach provides no guidance to lower courts, will spur more privacy lawsuits, and criticized respondents for never identifying which constitutional provision they relied on.
Concurrence — Justice Thomas
Justice Thomas separately concurred in the judgment, agreeing with Justice Scalia that the Constitution does not protect a right to informational privacy, noting that no constitutional provision mentions such a right and that reading unenumerated rights into the Due Process Clause 'strains credulity.'
How the Court got there
The legal reasoning, step by step
- The Court declined to resolve whether the Constitution actually protects a right to 'informational privacy,' instead assuming without deciding that such an interest exists, following the same approach used in two 1977 cases, Whalen v. Roe and Nixon v. Administrator of General Services.
- Because the government was acting as an employer managing its own workforce rather than as a regulator controlling citizens generally, the Court applied a more lenient standard, reasoning that the government has much more freedom when dealing with its own employees than when it exercises power over the public at large.
- Applying that lenient standard, the Court found the drug-treatment question was a reasonable follow-up to a legitimate question about recent illegal drug use, since it let the government treat drug treatment as a mitigating factor rather than a purely punitive one.
- The Court also found the open-ended reference questions on Form 42 reasonable, noting such broad questions are commonly used by both private and public employers to efficiently gather relevant information about job suitability.
- The Court rejected the argument that the government must show its background-check questions are strictly 'necessary,' holding that such a demanding requirement would conflict with Whalen's rejection of a similar necessity test.
- Finally, the Court found that the Privacy Act's restrictions on disclosure, consent requirements, and criminal penalties for unauthorized release adequately protected against public dissemination, satisfying whatever privacy interest might exist.
Doctrinal impact
Cases affected by this decision
Reaffirms Whalen v. Roe (429 U. S. 589)
The Court relied on Whalen's approach of assuming a privacy interest and finding disclosure safeguards sufficient.
Reaffirms Nixon v. Administrator of General Services (433 U. S. 425)
The Court again relied on Nixon's reasoning that statutory nondisclosure protections satisfy any privacy interest.