Employee Background Checks Go Before High Court

The Supreme Court heard arguments Tuesday from 28 engineers at NASA’s Jet Propulsion Laboratory who objected to open-ended questions about prior drug use and treatment and anything else bearing on “suitability for government employment or a security clearance.”

The engineers were employed by a NASA contractor and, as part of a background check, had been required to sign a release for questionnaires to be sent to references, former landlords and others who could verify the engineers’ work history.

Justice Sonia Sotomayor, the second most junior Justice on the Court, seemed most critical of the government’s position, repeatedly asking Acting Solicitor General Neal Katyal if there was any limit to the questions the government could ask. Katyal tried his best to avoid getting into that issue, instead arguing the court should limit its ruling to the specific question asked on these forms. He also pointed to the Privacy Act of 1974, saying it placed strict limits on government disclosure of information.

On the other side, Chief Justice John Roberts pressed the engineers’ lawyer on what kinds of questions would be appropriate and how government agencies could tailor sets of questions for each open position. He suggested the amount of work needed would be immense, especially if the questions needed to be justified in court.

Justice Ruth Bader Ginsburg, backed by Justice Anthony Kennedy, focused on the history of the case. The lower court had blocked this questionnaire and sent the case back to the lower court, but the Supreme Court stepped in at NASA’s request. Several Justices seemed to have questions about the lower court’s order, so the Court may send the case back before directly addressing the privacy rights of employees.

Justice Elena Kagan has recused herself from the case, raising the possibility of a 4-4 vote tie. Otherwise, the Court could issue its opinion as early as December.