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    October 5, 2010

    Challenge to Background Checks Falters

    By ADAM LIPTAK

    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 on Tuesday during arguments at the Supreme Court.

    Starting in 2005, the government has required federal contractors to conduct 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 it was not clear about its possible scope. The right, Justice Anthony M. Kennedy said Tuesday, “is somewhat ill-defined or undefined.”

    Neal K. 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 exists.

    But Chief Justice John G. Roberts Jr. 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’?” the chief justice asked Mr. Katyal.

    Mr. Katyal responded with two distinctions. When the government is acting as an employer, he said, it should be able to ask about potentially relevant matters just as private employers do.

    “That’s how baristas at Starbucks are hired,” Mr. Katyal said. “You have to ask these open-ended questions because as an employer, you don’t really know where the pressure points or danger spots in an individual application are.”

    Mr. 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 where its public dissemination is tightly controlled.

    But Mr. Katyal stopped short of saying there was no right to informational privacy at all, a position Justice Antonin Scalia seemed ready to endorse.

    “I think it’s a very nice thing that the government shouldn’t ask intrusive questions,” Justice Scalia said. “I also think that it’s a nice thing that the government should pay a living wage to its employees, but I don’t feel authorized to go around saying how much the government should pay each of its employees because there is nothing in the Constitution about that, and the question is left to Congress.”

    Justice Ruth Bader Ginsburg appeared to be pushing for a narrow ruling. She emphasized that the issue actually before the court concerned only inquiries about treatment for drug use in the past year and ones seeking adverse information from the employee’s landlords and other references.

    In 2008, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, provisionally blocked the government from pursuing those kinds of inquiries.

    Justice Elena Kagan was not present for the argument in the case, NASA v. Nelson, No. 09-530. She disqualified herself because she had worked on it as solicitor general.

    Dan Stormer, a lawyer for the scientists, seemed unable to provide the justices with a satisfactory structure to distinguish permissible questions from others. He did say that his clients should be allowed to continue their work. “Why does the government need to know this information for these individuals, most of whom have been there for 20 to 30 years?” he asked.

    Justice Ginsburg, who was a prominent advocate for gender equality before joining the court, responded with a locution that drew laughter in the court.

    “Are you then saying,” she asked, “that these people have to be grandfathered or grandparented” in?

    Mr. Stormer said no and made a more general point. “They are low- or no-risk employees,” he said. “This is a campus atmosphere.”

    Justice Scalia said that might be a problem. “Does Al Qaeda know all this stuff?” he asked.