518 U.S. 668 (1996), 94-1654, Board of County Com'rs, Wabaunsee County, Kan. v. Umbehr

Docket Nº:Nos. 94-1654, 95-191.
Citation:518 U.S. 668, 116 S.Ct. 2361, 135 L.Ed.2d 843, 64 U.S.L.W. 4687, 64 U.S.L.W. 4698
Case Date:June 28, 1996
Court:United States Supreme Court

Page 668

518 U.S. 668 (1996)

116 S.Ct. 2361, 135 L.Ed.2d 843, 64 U.S.L.W. 4687, 64 U.S.L.W. 4698







Nos. 94-1654, 95-191.

United States Supreme Court.

June 28, 1996

For U.S. Supreme Court briefs, see:

1995 WL477704 (Pet.Brief)

1996 WL19033 (Pet.Brief)

1995 WL595604 (Resp.Brief)

1996 WL71817 (Resp.Brief)

1995 WL655121 (Reply.Brief)

1996 WL109662 (Reply.Brief)


For majority opinions of the court, see 116 S.Ct.2342, and 116 S.Ct. 2353.

Justice SCALIA, with whom Justice THOMAS joins, dissenting. [*]

Taken together, today's decisions in Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 and O'Hare Truck Service, Inc. v. Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 demonstrate why this Court's Constitution- [116 S.Ct. 2362] making process can be called "reasoned adjudication" only in the most formalistic sense.


Six years ago, by the barest of margins, the Court expanded Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), which had held that public employees cannot constitutionally be fired on the basis of their political affiliation, to establish the new rule that applicants for public employment cannot constitutionally be rejected on the basis of their political affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). The four dissenters argued that "the desirability of patronage is a policy question to be decided by the people's representatives" and "a political question if there ever was one." Id., at 104, 114, 110 S.Ct., at 2752, 2758 (SCALIA, J., dissenting). They were "convinced" that Elrod and Branti had been "wrongly decided," 497 U.S., at 114, 110 S.Ct., at 2758; indeed, that those cases were "not only wrong, not only recent, not only contradicted by a long prior tradition, but also ... unworkable in practice" and therefore "should be overruled," id., at 110-111, 110 S.Ct., at 2756. At the very least, the dissenters maintained, Elrod and Branti "should not be extended beyond their facts." 497 U.S., at 114, 110 S.Ct., at 2758.

Today, with the addition to the Court of another Justice who believes that we have no basis for proscribing as unconstitutional practices that do not violate any explicit text of the Constitution and that have been regarded as constitutional ever since the framing, see, e.g., Bennis v. Michigan, 516 U.S. 442, 454-455, 116 S.Ct. 994, 1001-1002, 134 L.Ed.2d 68 (1996) (THOMAS, J., concurring), one would think it inconceivable that Elrod and Branti would be extended far beyond Rutan to the massive field of all government contracting. Yet amazingly, that is what the Court does in these two opinions--and by lopsided votes, at that. It is profoundly disturbing that the varying political practices across this vast country, from coast to coast, can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.

The basic reason for my dissent today is the same as one of the reasons I gave (this one not joined by Justice O'CONNOR) in Rutan:

"[W]hen a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. When it appears that the latest 'rule,' or 'three-part test,' or 'balancing test' devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court." 497 U.S., at 95-96, 110 S.Ct., at 2748 (dissenting opinion) (footnote omitted).

There can be no dispute that, like rewarding one's allies, the correlative act of refusing to reward one's opponents--and at bottom both of today's cases involve exactly that--is an American political tradition as old as the Republic. This is true not only with regard to employment matters, as Justice Powell discussed in his dissenting opinions in Elrod, supra, at 377-379, 96 S.Ct., at 2691-2692, and Branti, supra, at 522, n. 1, 100 S.Ct., at 1297, n. 1, but also in the area of government contracts, see, e.g., M. Tolchin & S. Tolchin, To the Victor: Political Patronage from the [116 S.Ct. 2363] Clubhouse to the White House 14-15, 61, 233-241, 273-277 (1971); A. Heard, The Costs of Democracy 143-145 (1960); R. Caro, The Power Broker: Robert Moses and the Fall of New York 723-726, 738, 740-741, 775, 799, 927 (1975); M. Royko, Boss: Richard J. Daley of Chicago 69 (1971); Wolfinger, Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics 365, 367-368, 372, 389 (1972); The Bond Game Remains the Same, Nat. L. J., July 1, 1996, pp. A1, A20-A21. If that long and unbroken tradition of our people does not decide these cases, then what does? The constitutional text is assuredly as susceptible of one meaning as of the other; in that circumstance, what constitutes a "law abridging the freedom of speech" is either a matter of history or else it is a matter of opinion. Why are not libel laws such an "abridgment"? The only satisfactory answer is that they never were. What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?

The Court seeks to avoid the charge that it ignores the centuries-old understandings and practices of our people by recounting, Umbehr, at 681-683, 116 S.Ct., at 2350-2351, shocking examples of raw political patronage in contracting, most of which would be unlawful under the most rudimentary bribery law. (It selects, of course, only the worst examples from the sources I have cited, omitting the more common practices that permit one author to say, with undeniable accuracy, that "honorable and prudent businessmen competing for government ventures make campaign contributions" out of "a desire to do what [is] thought necessary to remain eligible," and that "[m]any contractors routinely do so to both parties." Heard, supra, at 145.) These "examples of covert, widely condemned, and sometimes illegal government action," it says, do not "legitimize the government discrimination." Umbehr, at 683, 116 S.Ct., at 2351. But of course it is not the county's or city's burden (or mine) to "legitimize" all patronage practices; it is Umbehr's and O'Hare's (and the Court's) to show that all patronage practices are not only "illegitimate" in some vague moral or even precise legal sense, but that they are unconstitutional. It suffices to demonstrate the error of the Court's opinions that many contracting patronage practices have been open, widespread, and unchallenged since the beginning of the Republic; and that those that have been objected to have not been objected to on constitutional grounds. That the Court thinks it relevant that many patronage practices are "covert, widely condemned and sometimes illegal" merely displays its persistent tendency to equate those many things that are or should be proscribed as a matter of social policy with those few things that we have the power to proscribe under the Constitution. The relevant and inescapable point is this: No court ever held, and indeed no one ever thought, prior to our decisions in Elrod and Branti, that patronage contracting could violate the First Amendment. The Court's attempt to contest this point, or at least to becloud the issue, by appeal to obnoxious and universally condemned patronage practices simply displays the feebleness of its case.

In each case today, the Court observes that we "have long since rejected Justice Holmes' famous dictum, that a policeman 'may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.' " Umbehr, at 674, 116 S.Ct., at 2347 (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892)); see O'Hare, at 716-717, 116 S.Ct., at 2356 (quoting same). But this activist Court also repeatedly rejects a more important aphorism of Justice Holmes, which expresses a fundamental philosophy that was once an inseparable part of our approach to constitutional law. In a case challenging the constitutionality of a federal estate tax on the ground that it was an unapportioned direct tax in violation of Article I, § 9, Justice Holmes wrote:

"[The] matter ... is disposed of ..., not by an attempt to make some scientific distinction, which would be at least difficult, [116 S.Ct. 2364] but on an interpretation of language by its traditional use--on the practical and historical ground that this kind of tax always has been regarded as the antithesis of a direct tax.... Upon this point a page of history is worth a volume of logic." New York...

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