WASHINGTON — Scientists at a California research facility appeared likely to lose their challenge to background checks required by a Bush administration antiterrorism initiative, judging from the justices' questions Tuesday during arguments at the Supreme Court.
Starting in 2005, the government required federal contractors to do background checks of their employees using standard forms. The scientists objected to inquiries about drug counseling and wide-ranging questioning of their acquaintances. The issue in the case was whether making the scientists submit to the checks as a condition of employment violated a constitutional right to privacy.
In two decisions in 1977, the Supreme Court said there might be a constitutional right to "informational privacy," but the court was not clear about its scope.
Neal Katyal, the acting solicitor general, argued the case for the government. He urged the court to take only a small step toward bringing clarity to the topic by ruling that the background checks at issue did not violate whatever right existed.
But Chief Justice John Roberts posed a broader question. "Would you say there is no right of any kind for a citizen to tell the government, 'That is none of your business'?" he asked Katyal.
Katyal responded with two distinctions. When the government acts as an employer, he said, it should be able to ask about potentially relevant matters, just as private employers would do.
Katyal added that the plaintiffs in the case, who work at the Jet Propulsion Laboratory, which is operated by the California Institute of Technology under a contract with NASA, may not object to the mere collection of information when its public dissemination is tightly controlled.
But Katyal stopped short of saying there was no right to informational privacy at all.
Justice Ruth Bader Ginsburg emphasized that the issue before the court concerned only inquiries about treatment for drug use in the past year and ones seeking adverse information from employees' landlords and other references.
In 2008, a panel of the 9th U.S. Circuit Court of Appeals in San Francisco provisionally blocked the government from pursuing those kinds of inquiries.