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.