By Noah Feldman / Bloomberg Opinion
The so-called Department of Government Efficiency may be about to lose its mojo now that Elon Musk has left the building and is feuding with Donald Trump. But a Supreme Court decision issued Friday could cement DOGE’s legacy in a particularly troubling way. By a 6-3 vote, the justices have allowed DOGE to access Social Security data for all Americans while a lawsuit challenging that access proceeds.
The strong implication is that the court will ultimately find that the White House — which, in this administration, effectively means the entire executive branch — can access this data indefinitely. In practice, that means one more substantial step in the direction of turning the U.S. into a country like China, where the government has a 360-degree view of every aspect of its citizens’ lives.
The executive order that created DOGE commanded all agencies to allow access to their data “consistent with applicable law.” The applicable law in this case is the Privacy Act. It says that agencies can only disclose personal data in narrow circumstances, such as when agency employees “have a need for the record in the performance of their duties.” Social Security Administration policy also limits employees’ data access.
Concerned about the consequences of allowing DOGE — a rapidly assembled White House unit created for Musk — access to personal information, a federal district court quickly told the Social Security Administration that it could not provide DOGE with the data. A federal appeals court agreed, and the Trump administration asked the Supreme Court, via its emergency docket, to overturn the order, which it did.
As is typical for cases in the emergency docket, the six-justice majority — all the Court’s conservatives — didn’t explain its reasoning. The bottom line, however, is that the decision signals that they expect to eventually rule in favor of granting DOGE access. Perhaps they think that DOGE has a need for the records, so the Privacy Act doesn’t apply. Or, more radically, they may think that the Privacy Act is unconstitutional when applied to stop one part of the executive branch from seeing data collected by another part.
In dissent, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, focused on the principle that to overturn a lower court’s order, a party must prove it will suffer irreparable harm. The Trump administration, she emphasized, failed to show it would suffer irreparable harm by being denied access to the data while the underlying legal issues are adjudicated.
It’s interesting to note that Jackson’s opinion didn’t focus on the underlying legal question of whether DOGE should be allowed access to the data. Conceivably, even she isn’t sure the department doesn’t have a need for it. Or perhaps, given all the work at the end of the Supreme Court term, she chose to conserve judicial energy and not write a lengthy opinion engaging with the legal merits.
Either way, the paucity of information available to us illustrates the increasingly bizarre world of the Supreme Court in 2025, where matters of significant national importance are being decided in the emergency docket; with reasoning that ranges from minimal to nonexistent. This is certainly no way to reach sound, thoughtful decisions. It’s an even less effective means for creating legal predictability and stability, which require reasoned precedent to guide future cases.
Nevertheless, this is what we’ve got. The job of Supreme Court analysts used to be focused on assessing, interpreting, and explaining the complex subtleties of lengthy, thoughtful opinions full of footnotes, logic, and complexity. Now, court watchers like me are reduced to reading the tea leaves — or maybe entrails — that the justices offer us for divining their obscure purposes. Never have the justices been more oracular.
What doesn’t take any special prophetic powers is to see the dangers associated with the breakdown of privacy laws designed to compartmentalize and limit government employees’ access to sensitive personal information. The point of these laws isn’t to make it difficult for government to function. The point is to stand in the way of the government gaining universal intelligence about every aspect of our lives and then distributing that information to any official at any level who wants to go after us.
These privacy concerns were significant long before the Trump administration began its policy of pursuing its political enemies with every tool available to the federal government, no matter how unlawful the techniques might be. Now, in the reality of Trump world, privacy concerns are more important than ever.
If the White House has access to Social Security data — which includes every job you’ve ever had, every place you’ve lived, and every dollar you’ve ever earned — then it can presumably share that data with the IRS, the Department of Justice, the Department of Health and Human Services, and any other part of the government it wants to leverage for political purposes.
We are heading toward a government that knows everything about us. That used to be a concern for conservatives just as much as it was for liberals. Indeed, privacy should be a nonpartisan, bipartisan matter.
Someday, we may forget Musk’s foray into government. But its long-term effects may now include the rule of the all-seeing technologists. The DOGE of Minerva is spreading its wings; even as the dawn is breaking.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.” ©2025 Bloomberg L.P., bloomberg.com/opinion.
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