National Aeronautics & Space Administration v. Nelson
The Court ruled that NASA's standard employment background-check forms, including a question about drug treatment and open-ended questions to references, do not violate any constitutional privacy right, even assuming such a right exists.
The Government's interest in managing its own workforce, combined with federal privacy-law protections against public disclosure, was enough to satisfy any constitutional concern, so contract employees at NASA's Jet Propulsion Laboratory could be required to complete the background check.
“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 central holding that NASA's background-check questions were constitutional even assuming a privacy right exists.
How it got here: A trial court denied a preliminary injunction; the Ninth Circuit reversed and held portions of the forms were likely unconstitutional; the government sought Supreme Court review.
The Case in Depth
What happened
Twenty-eight scientists and engineers who worked as contract employees at NASA's Jet Propulsion Laboratory, operated by Cal Tech, sued after the government required them to complete a standard background-check questionnaire and let references answer open-ended questions about their character. The employees argued that a question about drug treatment and the broad reference questions violated a constitutional right to keep personal information private.
The question before the Court
Can NASA require contract employees at its Jet Propulsion Laboratory to answer background-check questions about drug treatment and let references discuss their personal habits?
The Court's answer
Yes — the Court ruled that NASA's background-check questions about past drug treatment and the open-ended questions sent to employees' references do not violate any privacy right, even assuming the Constitution protects one. The government was acting as an employer managing its own workforce, not as a regulator policing the public, so it gets far more leeway in asking job-related questions of its employees and their references.
The Court also pointed to the Privacy Act of 1974, which limits what records the government can keep, requires consent before disclosing them, and punishes violations, as adequate protection against improper public disclosure. Combined, the government's employer interests and these disclosure safeguards satisfied any privacy interest the Constitution might arguably protect, so the background-check forms could be enforced against the Jet Propulsion Laboratory's contract employees.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Millions of federal contract employees who need long-term access to government facilities can be required to complete background checks like these, including questions about drug treatment and open-ended reference inquiries. The ruling reassures agencies that routine background-check practices are constitutionally sound as long as privacy-law safeguards against public disclosure remain in place.
What changes now
The case is sent back to the lower courts, but the Supreme Court's ruling resolves the constitutional challenge to these particular forms in the government's favor. NASA's background-check requirement, including the drug-treatment and reference questions, can be enforced against Jet Propulsion Laboratory contract employees. The Court left open whether a constitutional right to informational privacy exists at all, so that broader question remains unresolved for future cases.
What this does not decide
The Court did not decide whether the Constitution actually protects a right to informational privacy at all — it merely assumed such a right for the sake of argument and found no violation even under that assumption. Justice Scalia's and Justice Thomas's concurrences argued no such right exists.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia, joined by Justice Thomas, argued there is no constitutional right to informational privacy at all, so the Court should not have assumed one exists. He criticized the majority's approach as incoherent, unguided by any real standard, and likely to invite a flood of lawsuits by leaving lower courts multiple unweighted factors to apply without knowing which matter or how much.
Concurrence — Justice Thomas
Justice Thomas agreed with Justice Scalia that the Constitution contains no right to informational privacy, since no provision mentions it and the Due Process Clause is not a source of unenumerated rights against the federal government. He wrote separately to reiterate this view from his own prior opinions.
How the Court got there
The legal reasoning, step by step
- The Court assumed, without deciding, that the Constitution protects some interest in avoiding forced disclosure of personal information, following two 1977 cases that had made the same assumption without ever settling the question.
- Because the government was acting as an employer managing its own workforce rather than as a regulator policing the public at large, the Court applied a more deferential approach, reasoning that courts give the government much wider latitude in employment matters than in ordinary regulation of citizens.
- Applying that deferential approach, the Court found the drug-treatment question was a reasonable, humane way to identify employees whose past drug use should be treated as a mitigating factor rather than a disqualifying one.
- The Court likewise found the open-ended reference questions reasonable because they are common in public and private-sector background checks and let references efficiently flag concerns without a lengthy checklist of every possible issue.
- The Court then looked at the safeguards against public disclosure in the Privacy Act of 1974, which limits what the government can collect, requires consent before disclosure, and imposes criminal penalties for violations, and concluded these protections adequately guarded against the kind of harm any assumed privacy interest would guard against.
- Because the forms were reasonable employment inquiries and were shielded by the Privacy Act's nondisclosure rules, the Court concluded that the background-check process did not violate any privacy interest, whatever its constitutional status.
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 upholding disclosure safeguards as sufficient protection.
Reaffirms Nixon v. Administrator of General Services (433 U.S. 425)
The Court followed Nixon's method of assuming a privacy interest without deciding whether it is constitutionally required.