January 19, 2011

In the new "informational privacy" case — Justice Scalia talks about evaporated, refreshing, Lincolnesque honesty; pontificating in the guise of judicial minimalism; and what I think are McGuffins.

"I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution," writes Justice Scalia in a concurring opinion in NASA v. Nelson, a unanimously decided case issued this morning:
But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.
Scalia notes the "remarkable and telling fact," which he says he has never seen before in the Supreme Court, that the party saying his rights have been violated does not — even once —cite a constitutional text in his brief:
To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

Regrettably, this Lincolnesque honesty evaporated at oral argument....
Questioned at oral argument, Nelson's lawyer said what you'd expect him to say: the Due Process Clause. And then Scalia goes on to say what you'd expect him to say, disparaging "the infinitely plastic concept of 'substantive' due process."

Scalia also attacks the majority's "judicial minimalism" — manifested in its failure to say whether at some point — though not in this case — there may be a violation of a constitutional right to informational privacy. It's "not actually minimalist" to decide cases this way, Scalia says, because the Court took the opportunity able "to pontificate upon a matter that" — if there is no such right — "is none of its business: the appropriate balance between security and privacy." And if there is such a right...
I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.
Alfred Hitchcock line of jurisprudence...  I think that has something to do with McGuffins.

ADDED: I moved the erstwhile title of this post into the first line so I could write a more exciting headline. I've got to push myself to be more sensationalistic. I hope you appreciate the effort.

34 comments:

PaulV said...

Anything Hitchcock works

Lucien said...

Nothing whips up a frenzy in the blogosphere like sensationalist speculation that there are McGuffins at play.

traditionalguy said...

The Supreme Court itself maybe a 210 year old McGuffin. We shall see when they rule on the Mandate for citizens in States to Purchase health insurance policies. Why should the SCOTUS be listened to if they have let themselves become a plot device for the Great leader's use in story telling?

traditionalguy said...

I heard the McGuffins went extinct along with the Gooney Birds. Scalia worries too much.

Quayle said...

The Supreme Court starring in the dark thriller, "The Maltese Constitutional Right" starring Anton Scalia as Sam Spade, Justice Kennedy as Miles Archer, Ruth Bader Ginsberg as miss Ruth Wonderly, and Elena Kagan as Joel Cairo.

J said...
This comment has been removed by the author.
Florida said...

"We shall see when they rule on the Mandate for citizens in States to Purchase health insurance policies."

Because if the Democrats can force you to buy health insurance products from their campaign donors (at whatever price those donors decide to charge you(, then they can force you to buy life insurance products from their campaign donors.

And burial insurance.

And collision.

And dental insurance.

And then once they run out of insurance products - Democrats will force you to buy condoms from their donors and abortions next.

Surely there are 5 people on the Supreme Court who can see a slippery slope when it knocks them upside the fucking head like a clue-by-4.

But if they can't, there's always the Tunisian example we could follow.

The Supremes should take a look across the pond, at what a determind populace suffering 10% unemployment can do to a tyrannical government. They should ponder just how quickly such a government can be crushed by a population armed only with indignation and anger at injustice.

The Executive has gone too far and it threatens our foundations. The Supreme Court had better step in and stop what's coming.

traditionalguy said...

yes,we appreciate the puzzling new sensational headlines. Did you also work for National Inquirer once?

Leland said...

To the "ADDED"... If I wanted sensational headlines, I'd stop at Drudgereport and just admire the hell out of it.

Alas, I just check in at Matt Drudge to make sure Congressmen are shot at, Palin is blamed, small islands are rocked by earthquakes, and that Australia remains flooded. Then I come over to Althouse to read interesting topics.

ricpic said...

"It's none of your business."

"None of my business? Fuck it ain't!"

--Scarface

J said...

Florida, representin' for the Posse Comitatus.

Besides, Scalia & Co are hardly statist liberals--more like wannabe Mussolinis. (and lest we forget, the US Senate approved Scalia unanimously--ie all Dems and GOPers-- back in the Reagan Era show. For that matter, only 30 or so Dems rejected Rehnquist, probably the most conservative SC judge since like, Marshall).

paul a'barge said...

You are sensational, dahling! Meade says so.

Calypso Facto said...

"One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution."

Or as Berta, on Two and a Half Men said: "you can roll manure in powder sugar, but it still ain't a jelly donut"

RichardS said...

How does Thomas stand on this one? As I understand him, he's in line with James Madison (at least until the summer of 1788), James Wilson, Alexander Hamilton and others in thinking that rights exist independently of their direct and explicit inclusion in a constitutional amendment, and that, therefore, a Bill of Rights was not necessary. The 9th and 10th Amendments were supposed to cover those not listed. Those who opposed the Bill of Rights feared that the failre to list one would mean that the government would conclude that suh a right did not exist.

PaulV said...

J, Your vague reference to Posse Comitatus, are you suggesting the attack on Davidians was illegeal under US Code.
Or just that as usual you do not know what you are talking about?

J said...

Paul, are you defending yokel rightist-terrorists such as Koresh, Posse Com., McVeigh, or klansmen, or just a stupid pedazo de mierda

(Miss A, looks like you're not just getting support from TP wingnuts, but like dixie klansmen)

Carl Vero said...

I concur in Scalia's opinion. By opining that something (informational privacy) may/may not be a constitutional protected right, and naming factors that may/may not be relevant, the court's majority is, like Hitchcock, creating mystery within mystery, offering a host of possible clues. At the end of a Hitchcock movie, 90-120 minutes, the puzzle is fixed. The court has been at it for 33 years, and we may have to wait for a solution till the end of time.

PaulV said...

J, I notice you are unable to answer the question. Take your meds. Loughter should have.

Bender said...

The CSI case was decided today too (Harrington v. Richter).

Penny said...

"..we may have to wait for a solution till the end of time."

*glances at her watch*

BEK477 said...

Ann,

I think you need some theme music. Say something in a Bernard Herman vein.

Oh, and a poster.... Something that alludes to Wisconsin:its cold, wintery weather; the practice of law and danger. I mean if we are going to trod the path of sensationalism should we not do it up right?

And somewhere in this melange should be a clear refernece to either death or sex;--or, an allusion to really good food.

Nothing but the best for observer of the passing scene.

Synova said...

Seems to me that a person isn't compelled to take any particular job, so the information search or back-ground check or drug test is voluntary.

OTOH, a person is compelled pay taxes and provide extensive personal information and it's not voluntary at all since it can't be avoided.

Synova said...

Heh.

When I hear posse comitatus I think about how it is a law to prevent our government from using our military against our own people.

Learn something new every day.

Synova said...

Apparently J doesn't associate posse comitatus with military action against a domestic target.

Probably thinks "consanguinity" means "brotherhood."

Florida said...

"When I hear posse comitatus I think about how it is a law to prevent our government from using our military against our own people."

It is. You get another cookie, Synova.

My earlier point stands. People believe that our government is forever ... but it doesn't have to be. People thought Rome would be forever, too.

Just look at what is going on in Tunisia and consider that nobody in Tunisia enjoys a Second Amendment right to bear 30-round clips with 2,000 Wal-Marts standing ready to fill them.

With gasoline, some beer bottles a scarf and a match ... they've eliminated their corrupt government and are in the process of finding new guards for their future security.

And the same thing can happen here in the blink of an eye when the right mix of anger, indignation, unemployment, Democrat Party corruption and out-and-out thievery mix in just the right volatile proportions.

Does our Congress think we can't take back our own houses? They should take a hard fucking look at Tunisia. But for the grace of God go they.

ObamaCare is about the ability of the Democrat Party to enslave Americans. If they can force you to buy shit from them, then they fucking own you.

I will not be a fucking slave to Barack Hussein Obama - or any other fucking Democrat.

I'm positive and hopeful that the Supreme Court is intelligent enough to know when the Executive and Legislative branches have gotten just a little too big for their britches.

And I'm also confident that if they don't ... there are Tunisian avenues available to Americans rather than suffering under a tyrannical government.

Synova said...

I hope that things go as well as they might for Tunisia.

I wonder what the US is doing about it. Part of me hopes, nothing, since as these foreign policy side-chosings go Obama has the track record of being right zero percent of the time.

Conservatives 4 Better Dental Hygiene said...

"...do not offend the constitution."

Sounds like he's treating the thing like a living document, with feelings, no less!

somefeller said...

I will not be a fucking slave to Barack Hussein Obama - or any other fucking Democrat.

But you are a slave to your own stupidity, or your strange need to be a moby-troll. Either way, you have that going for you, champ.

And I'm also confident that if they don't ... there are Tunisian avenues available to Americans rather than suffering under a tyrannical government.

Fortunately, we don't live under a tyranny, we live in a well-functioning republic, so the Tunisia example isn't really relevant. Except to internet tough guys and other societal rejects, of course.

Instugator said...

"...disparaging 'the infinitely plastic concept of 'substantive' due process."

Soon we will see if they can disparage the "infinitely plastic concept" of the commerce clause.

Revenant said...

For that matter, only 30 or so Dems rejected Rehnquist

33, to be precise. Is that supposed to impress?

Here's a count of the number of opposition-party Senators voting against confirmation of Supreme Court nominees. Bold entries are Republican nominees; plain text are Democrats:

Rehnquist: 33
Scalia: 0
Bork: 52
Kennedy: 0
Thomas: 46
Ginsburg: 3
Breyer: 9
Roberts: 22
Alito: 40
Sotomayor: 31
Kagan: 36

My goodness! Republicans sure did turn nasty when that Sotomayor nomination came up! What brought that on? Can't they stop being do "partisan"?

Amusingly, Sotomayor was the first Democratic nominee in over a century to have more than 21 members of the opposing party vote against her. There had been 11 such Republican nominees in that time -- five in the last quarter-century, and three of them on the current court!

Rehnquist, probably the most conservative SC judge since like, Marshall

Since Thurgood Marshall, perhaps. :)

cubanbob said...

Scalia is right. There isn't some undiscovered right to privacy in the constitution. I believe there should be a constitutional right to privacy and there ought to be a movement along the lines of the TEA Party to establish such a right.

Florida: chill. This county's greatness lies in the fact that eventually the pendulum swings back without third world revolutions or European excesses. Leave the craziness of FL to my neck of the woods, South Florida.

Now perhaps it's wishful thinking on my part but it appears to me Scalia is telegraphing a message loud and clear to Congress. Now connect the dots to the lawsuit our state has filed against Obama care and you can see where this might be going.

Revenant said...

This county's greatness lies in the fact that eventually the pendulum swings back without third world revolutions or European excesses.

I would suggest you look at a chart of combined state and federal spending as a percentage of GDP. There's no pendulum swing; there's steady and consistent growth over the last 80 years.

John0 Juanderlust said...

Aren't the rights of the government supposed to only be those granted it by the constitution, and those of the people (and states) assumed to be all that are not strictly forbidden?
May be my mistake, but I thought what separated the USA model was that the people grant the government certain rights, not the other way around.
I can see how some issues get a little sticky, but I'm saddened by the language and tone of the court's discussion.

amba said...

If that's your idea of sensationalistic . . . you're such a wonk!