Justices question Caltech scientists’ privacy claims

The Supreme Court gave a skeptical hearing Tuesday to 28 scientists from the Jet Propulsion Laboratory in La Cañada Flintridge who are challenging the government’s use of background checks to learn about their personal lives, including past drug use.

Their case raises a potentially broad question that affects millions of public employees and a growing army of private contract workers. Does the Constitution protect the personal privacy of government employees and job applicants?

“We have no secrets to hide,” Robert M. Nelson, a space scientist who has worked at JPL for 32 years and the lead plaintiff in the lawsuit, said last week. “Like most persons, I am not a saint or a very interesting sinner.”

Nelson and his colleagues sued after NASA ordered new background checks for the longtime contract employees. They won a ruling from the U.S. 9th Circuit Court of Appeals saying that the open-ended questions violated their right to privacy. The decision emphasized that they held “low-risk” jobs at JPL.

The scientists work for Caltech, which runs JPL under a NASA contract. Last year, however, then-Solicitor General Elena Kagan urged the high court to reverse the ruling. She said it threatened the government’s use of standard background forms that are filled out by millions of federal workers.

Kagan did not participate in Tuesday’s argument, but all of her court colleagues — with the exception of Justice Sonia Sotomayor — sounded as though they would uphold the use of background checks.

The justices spent much of the hour debating whether the Constitution puts any limits on the questions asked of prospective employees.

Justice Antonin Scalia said there was no such privacy right.

“It’s a very nice thing that the government shouldn’t ask intrusive questions … but I just don’t see it anywhere in the Constitution,” he told Dan Stormer, a Pasadena lawyer who represented the Caltech employees.

But Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they would not close the door to all such claims. “You would say there is no right of any kind for a citizen to tell the government, ‘That is none of your business?’ ” Roberts asked Neal Katyal, the acting solicitor general.

Alito said he too questioned whether the government could ask people to fill out forms describing what they ate, what they read, whether they smoked cigarettes and information about their sex lives. “Is that OK?” he pressed the government lawyer.

“No. There are limits,” Katyal agreed. But he urged the justices to rule that employment is different and that government can ask open-ended questions of its employees and contract workers. He also warned the justices against making a broad pronouncement on whether the Constitution protects the privacy of personal information.

The case clearly touched a nerve with the justices: They are employers as well as jurists. At several points, they noted that they needed to know about the backgrounds of their law clerks before hiring them. “How do you do this, except by asking open-ended questions?” Alito asked.

When the Pasadena lawyer emphasized that the Caltech scientists held low-risk positions at the “campus-like” JPL, Roberts objected. “You don’t know if it’s a low-risk employee until you find what the neighbor thinks. ‘Well, you know, he keeps practicing planting bombs’ or something. Then he becomes a high-risk employee.”

Throughout the argument, Sotomayor said the court should confront the question of whether there are any limits on what government employers can ask of employees. “What’s your genetic makeup? Could you ask that?” she said.

Katyal dodged the question by saying the court should avoid ruling on whether the Constitution sets a boundary for such inquiries. “The real check is the political process,” he said.

The justices will vote this week and issue a ruling by June in the case of NASA vs. Nelson.

david.savage@latimes.com