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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, January 19, 2011

Supreme Court Watch: Win/Lose Edition

NASA v. Nelson is a typical win/lose ruling -- it narrowly decides the question at hand without being a big loss for either side. Yesterday, it was an oral argument that deals with the state secrecy doctrine.

The mega issue at stake in the first case is informational privacy. As noted by the ruling (see also, here), there are some references to such a constitutional liberty but the matter was never dealt with too carefully. The government employee background check involved here would not be a good place either, particularly since the government doesn't deny some sort of right exists. So, the right was assumed but a suitable government interest showed it was not an invalid violation. Justice Alito, who referenced a concern of government seeking too much private information last term, wrote the opinion.*

I can see how the matter could be problematic in certain cases but this appears to be the best way of doing things, especially since -- as the opinion notes -- the questions here are in some sense beneficial to the employees. This does not deny that there is a right to informational privacy, both as a basic substantive liberty interest [if you have a liberty over marital affairs, e.g., this includes some protection of the information there] and growing out (see Alito) of other rights such as freedom of association or Fourth Amendment concerns (e.g., "papers" include privacy over intimate diaries and such). Such a case is probably out there, but particularly with this Court, judicial minimalist opinions to deal with cases like this (which do reach many people given the number of government employees even in this agency) are appreciated in a fashion as well.

I'm less gung ho about a state secrecy case up for oral argument yesterday. As noted here and elsewhere, the Supreme Court didn't seem to have much concern about challenging the underlining corrupt premise that allows the U.S. government to avoid relief in civil cases via an overly broad state secrecy doctrine. As shown in this extraordinary rendition case, state secrecy can promote injustice both before, during and after the fact. In the midst of the Cold War, three hard-nosed FDR appointees agreed with a lower court judge who took a different approach. As I quoted in the link above:
One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision.
The justices themselves yesterday flagged the "heads I win, tails you lose" strategy of the government (the Obama Administration supporting the practice), but a "greedy" governmental contracting company is not likely to be a promising case for the Supreme Court to do much. As Scalia noted, more likely they will use it to say "go away." No big deal for this group, but more so when torture victims and others are trying to obtain a semblance of justice.

Judicial minimalism, especially of the sort that leans in a certain ideological direction, is a matter of winning some, losing some. The Roberts Court will be a repeated game of getting what you can and avoiding losing as well.


* During oral argument, Justice Sotomayor raised some concern about the limits of how much information the government could seek out while the question of what information they can share also arose. But, the Obama Administration did not wish to deal with the issue, a limiting of the scope that with which Justice Ginsburg was quite on board. Interestingly, Ginsburg concurred briefly in two right to counsel cases today, narrowly joining unanimous rulings against the defense.

Scalia/Thomas wrote separately today to argue that they don't think informational privacy is protected by the Constitution, Scalia annoyed Nelson didn't cite a clause even though the government never denied it existed. Why citing precedent and the like isn't enough is therefore too upsetting is somewhat unclear. And, see here, any truth to his "fake" minimalist point is belied by how selectively he cares about it in practice.