Kozinski’s Turducken Dissent Sets Up Cert Petition in Privacy Case
The government is asking the U.S. Supreme Court to overturn a federal appeals court ruling allowing engineers and scientists to pursue a suit that claims newly instituted background checks invade their privacy.
The plaintiffs, employees of NASA’s Jet Propulsion Laboratory, contend the government wants to ask friends and acquaintances about their emotional health, financial integrity and sexual histories, violating their right to privacy. Solicitor General Elena Kagan argues there is no violation by collecting, rather than disseminating, the information, according to a Los Angeles Times opinion column.
A panel of the San Francisco-based 9th U.S. Circuit Court of Appeals issued an injunction halting the background checks while the suit goes forward, and the full appeals court refused to rehear the case in June, the New York Times reports. Chief Judge Alex Kozinski dissented (PDF) from the refusal to take the case.
“Is there a constitutional right to informational privacy? Thirty-two terms ago, the Supreme Court hinted that there might be and has never said another word about it,” Kozinski wrote. “With no Supreme Court guidance except this opaque fragment, the courts of appeals have been left to develop the contours of this free-floating privacy guarantee on their own. It’s a bit like building a dinosaur from a jawbone or a skull fragment, and the result looks more like a turducken. We have a grab bag of cases on specific issues, but no theory as to what this right (if it exists) is all about.”
The Times points out that a turducken is a chicken stuffed into a duck that is stuffed into a turkey. Kozinski’s dissent was the first mention of the dish in American jurisprudence, the story says. It calls Kozinski “a master of the dissent that might as well be a petition for Supreme Court review of the majority’s decision.”