|Rutan v. Republican Party of Illinois
100 U.S. 1
868 F.2d 943 (CA7 1989), affirmed in part, reversed in part, and remanded.
[ Brennan ]
[ Stevens ]
[ Scalia ]
Rutan v. Republican Party of Illinois
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
Justice SCALIA, with whom The Chief Justice and Justice KENNEDY join, and with whom Justice O'CONNOR joins as to Parts II and III, dissenting.
Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante at 64. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where [p93] partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil-service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall:
I ain't up on sillygisms, but I can give you some arguments that nobody can answer.
First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay.
W. Riordon, Plunkitt of Tammany Hall 13 (1963). It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley and their ilk were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline," before the demands of small and cohesive interest groups. [p94]
The choice between patronage and the merit principle -- or, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contexts -- is not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in Elrod v. Burns, 427 U.S. 347 (1976), the Court did that. Elrod was limited however, as was the later decision of Branti v. Finkel, 445 U.S. 507 (1980), to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil-service reform absolute, extending to all decisions regarding government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent.
The restrictions that the Constitution places upon the government in its capacity as lawmaker, i.e., as the regulator of private conduct, are not the same as the restrictions that it places upon the government in its capacity as employer. We have recognized this in many contexts, with respect to many different constitutional guarantees. Private citizens perhaps cannot be prevented from wearing long hair, but policemen can. Kelley v. Johnson, 425 U.S. 238, 247 (1976). Private citizens cannot have their property searched without probable cause, but in many circumstances government employees can. O'Connor v. Ortega, 480 U.S. 709, 723 (1987) (plurality opinion); id. at 732 (SCALIA, J., concurring in judgment). Private citizens cannot be punished for refusing to provide the government information that may incriminate them, but government employees can be dismissed when the incriminating information that they refuse to provide relates to the performance of their job. Gardner v. Broderick, 392 [p95] U.S. 273, 277-278 (1968). With regard to freedom of speech in particular: Private citizens cannot be punished for speech of merely private concern, but government employees can be fired for that reason. Connick v. Myers, 461 U.S. 138, 147 (1983). Private citizens cannot be punished for partisan political activity, but federal and state employees can be dismissed and otherwise punished for that reason. Public Workers v. Mitchell, 330 U.S. 75, 101 (1947); CSC v. Letter Carriers, 413 U.S. 548, 556 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 616-617 (1973).
Once it is acknowledged that the Constitution's prohibition against laws "abridging the freedom of speech" does not apply to laws enacted in the government's capacity as employer the same way it does to laws enacted in the government's capacity as regulator of private conduct, it may sometimes be difficult to assess what employment practices are permissible and what are not. That seems to me not a difficult question, however, in the present context. The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when 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. [n1] Such a venerable and accepted tradition is not to [p96] 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 are 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.
I will not describe at length the claim of patronage to landmark status as one of our accepted political traditions. Justice Powell discussed it in his dissenting opinions in Elrod and Branti. Elrod, 427 U.S. at 378-379 (Powell, J., dissenting); Branti, 445 U.S. at 522, n. 1 (Powell, J., dissenting). Suffice it to say that patronage was, without any thought that it could be unconstitutional, a basis for government employment from the earliest days of the Republic until Elrod -- and has continued unabated since Elrod to the extent still permitted by that unfortunate decision. See, e.g., D. Price, Bringing Back the Parties 24, 32 (1984); Gardner, A Theory of the Spoils System, 54 Public Choice 171, 181 (1987); Toinet & Glenn, Clientelism and Corruption in the "Open" Society: The Case of the United States, in Private Patronage and Public Power 193, 202 (C. Clapham ed. [p97] 1982). Given that unbroken tradition regarding the application of an ambiguous constitutional text, there was in my view no basis for holding that patronage-based dismissals violated the First Amendment -- much less for holding, as the Court does today, that even patronage hiring does so. [n2]
Even accepting the Court's own mode of analysis, however, and engaging in "balancing" a tradition that ought to be part of the scales, Elrod, Branti, and today's extension of them seem to me wrong.
The Court limits patronage on the ground that the individual's interest in uncoerced belief and expression outweighs the systemic interests invoked to justify the practice. Ante [p98] at 68-72. The opinion indicates that the government may prevail only if it proves that the practice is "narrowly tailored to further vital government interests." Ante at 74.
That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when
the governmental function operating . . . [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns]. . . .
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961). When dealing with its own employees, the government may not act in a manner that is "patently arbitrary or discriminatory," id. at 898, but its regulations are valid if they bear a "rational connection" to the governmental end sought to be served, Kelley v. Johnson, 425 U.S. at 247.
In particular, restrictions on speech by public employees are not judged by the test applicable to similar restrictions on speech by nonemployees. We have said that
[a] governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government.
Brown v. Glines, 444 U.S. 348, 356, n. 13, (1980). In Public Workers v. Mitchell, 330 U.S. at 101, upholding provisions of the Hatch Act which prohibit political activities by federal employees, we said that
it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service.
We reaffirmed Mitchell in CSC v. Letter Carriers, 413 U.S. at 556, over a dissent by Justice Douglas arguing against application of a special standard to government employees, except insofar as their "job performance" is concerned, id. at 597. We did not say that the Hatch Act was narrowly tailored to meet [p99] the government's interest, but merely deferred to the judgment of Congress, which we were not "in any position to dispute." Id. at 567. Indeed, we recognized that the Act was not indispensably necessary to achieve those ends, since we repeatedly noted that "Congress at some time [may] come to a different view." Ibid., see also id. at 555, 564. In Broadrick v. Oklahoma, 413 U.S. 601 (1973), we upheld similar restrictions on state employees, though directed "at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments," id. at 616.
To the same effect are cases that specifically concern adverse employment action taken against public employees because of their speech. In Pickering v. Board of Education of Township High School Dist., 391 U.S. 563, 568 (1968), we recognized:
[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
Because the restriction on speech is more attenuated when the government conditions employment than when it imposes criminal penalties, and because "government offices could not function if every employment decision became a constitutional matter," Connick v. Myers, 461 U.S. at 143, we have held that government employment decisions taken on the basis of an employee's speech do not "abridg[e] the freedom of speech," U.S. Const., Amdt. 1, merely because they fail [p100] the narrow-tailoring and compelling-interest tests applicable to direct regulation of speech. We have not subjected such decisions to strict scrutiny, but have accorded "a wide degree of deference to the employer's judgment" that an employee's speech will interfere with close working relationships. 461 U.S. at 152.
When the government takes adverse action against an employee on the basis of his political affiliation (an interest whose constitutional protection is derived from the interest in speech), the same analysis applies. That is why both the Elrod plurality, 427 U.S. at 359, and the opinion concurring in the judgment, id. at 375, as well as Branti, 445 U.S. at 514-515, and the Court today, ante at 72, rely on Perry v. Sindermann, 408 U.S. 593 (1972), a case that applied the test announced in Pickering, not the strict-scrutiny test applied to restrictions imposed on the public at large. Since the government may dismiss an employee for political speech "reasonably deemed by Congress to interfere with the efficiency of the public service," Public Workers v. Mitchell, supra, 330 U.S. at 101, it follows a fortiori that the government may dismiss an employee for political affiliation if "reasonably necessary to promote effective government." Brown v. Glines, supra, 444 U.S. at 356, n. 13.
While it is clear from the above cases that the normal "strict scrutiny" that we accord to government regulation of speech is not applicable in this field, [n3] the precise test that replaces [p101] it is not so clear; we have used various formulations. The one that appears in the case dealing with an employment practice closest in its effects to patronage is whether the [p102] practice could be "reasonably deemed" by the enacting legislature to further a legitimate goal. Public Workers v. Mitchell, supra, 330 U.S. at 101. For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general "balancing" test: can the governmental advantages of this employment practice reasonably be deemed to outweigh its "coercive" effects?
Preliminarily, I may observe that the Court today not only declines, in this area replete with constitutional ambiguities, to give the clear and continuing tradition of our people the dispositive effect I think it deserves, but even declines to give it substantial weight in the balancing. That is contrary to what the Court has done in many other contexts. In evaluating [p103] so-called "substantive due process" claims, we have examined our history and tradition with respect to the asserted right. See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989); Bowers v. Hardwick, 478 U.S. 186, 192-194 (1986). In evaluating claims that a particular procedure violates the Due Process Clause, we have asked whether the procedure is traditional. See, e.g., Burnham v. Superior Court of California, Marin County, 495 U.S. 604 (1990). And in applying the Fourth Amendment's reasonableness test, we have looked to the history of judicial and public acceptance of the type of search in question. See, e.g., Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537 (1967). See also Press-Enterprise Co. v. Superior Court of California, Riverside County, 478 U.S. 1, 8 (1986) (tradition of accessibility to judicial proceedings implies judgment of experience that individual's interest in access outweighs government's interest in closure); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (BRENNAN, J., concurring in judgment) ("Such a tradition [of public access] commands respect in part because the Constitution carries the gloss of history"); Walz v. Tax Comm'n of New York, 397 U.S. 664, 678 (1970) ("unbroken practice of according the [property tax] exemption to churches" demonstrates that it does not violate Establishment Clause).
But even laying tradition entirely aside, it seems to me our balancing test is amply met. I assume, as the Court's opinion assumes, that the balancing is to be done on a generalized basis, and not case-by-case. The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its "coercive" effects (even the lesser "coercive" effects of patronage hiring as opposed to patronage firing) not merely in 1990 in the State of Illinois, but at any time in any of the numerous political subdivisions of this vast country. It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability [p104] and facilitating the social and political integration of previously powerless groups.
The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people's representatives; I do not mean, therefore, to endorse that system. But in order to demonstrate that a legislature could reasonably determine that its benefits outweigh its "coercive" effects, I must describe those benefits as the proponents of patronage see them: As Justice Powell discussed at length in his Elrod dissent, patronage stabilizes political parties and prevents excessive political fragmentation -- both of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank-and-file, especially in "the dull periods between elections," to perform such tasks as organizing precincts, registering new voters, and providing constituent services. Elrod, 427 U.S. at 385 (dissenting opinion). Even the most enthusiastic supporter of a party's program will shrink before such drudgery, and it is folly to think that ideological conviction alone will motivate sufficient numbers to keep the party going through the off-years.
For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties.
Ibid. Here is the judgment of one such politician, Jacob Arvey (best known as the promoter of Adlai Stevenson): Patronage is
"a necessary evil if you want a strong organization, because the patronage system permits of discipline, and without discipline, there's no party organization."
Quoted in M. Tolchin & S. Tolchin, To the Victor 36 (1971). A major study of the patronage system describes the reality as follows:
[A]lthough men have many motives for entering political life . . . the vast underpinning of both major parties is made up of men who seek practical rewards. Tangible advantages constitute the unifying thread of most successful political practitioners. . . .
Id. at 22. [p105]
With so little patronage cement, party discipline is relatively low; the rate of participation and amount of service the party can extract from [Montclair] county committeemen are minuscule compared with Cook County. The party considers itself lucky if 50 percent of its committeemen show up at meetings -- even those labeled "urgent" -- while even lower percentages turn out at functions intended to produce crowds for visiting candidates.
Id. at 123. See also W. Grimshaw, The Political Economy of Machine Politics, 4 Corruption and Reform 15, 30 (1989); G. Pomper, Voters, Elections, and Parties 255 (1988); Wolfinger, Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J.Politics 365, 384 (1972).
The Court simply refuses to acknowledge the link between patronage and party discipline, and between that and party success. It relies (as did the plurality in Elrod, 427 U.S. at 369, n. 23) on a single study of a rural Pennsylvania county by Professor Sorauf, ante at 75 -- a work that has been described as "more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generalizability of [its] findings." Wolfinger, supra, at 384, n. 39. It is unpersuasive to claim, as the Court does, that party workers are obsolete because campaigns are now conducted through media and other money-intensive means. Ante at 75. Those techniques have supplemented but not supplanted personal contacts. See Price, Bringing Back the Parties, at 25. Certainly they have not made personal contacts unnecessary in campaigns for the lower-level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off. See Elrod, supra, at 384 (Powell, J., dissenting); Branti, 445 [p106] U.S. at 528 (Powell, J., dissenting). Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronage -- but without the attendant benefit of strengthening the party system. A challenger can more easily obtain the support of party workers (who can expect to be rewarded even if the candidate loses -- if not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail).
It is self-evident that eliminating patronage will significantly undermine party discipline, and that, as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante at 74. This is almost verbatim what was said in Elrod, see 427 U.S. at 369. Fourteen years later, it seems much less convincing. Indeed, now that we have witnessed, in 18 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 98% of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p. A1, the statement that "political parties have already survived" has a positively whistling-in-the-graveyard character to it. Parties have assuredly survived -- but as what? As the forges upon which many of the essential compromises of American political life are hammered out? Or merely as convenient vehicles for the conducting of national presidential elections?
The patronage system does not, of course, merely foster political parties in general; it fosters the two-party system in particular. When getting a job, as opposed to effectuating a particular substantive policy, is an available incentive for [p107] party workers, those attracted by that incentive are likely to work for the party that has the best chance of displacing the "ins," rather than for some splinter group that has a more attractive political philosophy but little hope of success. Not only is a two-party system more likely to emerge, but the differences between those parties are more likely to be moderated, as each has a relatively greater interest in appealing to a majority of the electorate and a relatively lesser interest in furthering philosophies or programs that are far from the mainstream. The stabilizing effects of such a system are obvious. See Toinet & Glenn, Clientelism and Corruption in the "Open" Society, at 208. In the context of electoral laws, we have approved the States' pursuit of such stability and their avoidance of the "splintered parties and unrestrained factionalism [that] may do significant damage to the fabric of government." Storer v. Brown, 415 U.S. 724, 736 (1974) (upholding law disqualifying persons from running as independents if affiliated with a party in the past year).
Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest-groups. See Tolchin & Tolchin, To the Victor, at 127-130. There is little doubt that our decisions in Elrod and Branti, by contributing to the decline of party strength, have also contributed to the growth of interest-group politics in the last decade. See, e.g., Fitts, The Vice of Virtue, 136 U.Pa.L.Rev. 1567, 1603-1607 (1988). Our decision today will greatly accelerate the trend. It is not only campaigns that are affected, of course, but the subsequent behavior of politicians once they are in power. The replacement of a system firmly based in party discipline with one in which each officeholder comes to his own accommodation with competing interest groups produces "a dispersion of political influence that may inhibit a [p108] political party from enacting its programs into law." Branti, supra, at 531 (Powell, J., dissenting). [n4]
Patronage, moreover, has been a powerful means of achieving the social and political integration of excluded groups. See, e.g., Elrod, supra, 427 U.S. at 379 (Powell, J., dissenting); Cornwell, Bosses, Machines and Ethnic Politics, in Ethnic Group Politics 190, 195-197 (H. Bailey, Jr., & E. Katz eds. 1969). By supporting and ultimately dominating a particular party "machine," racial and ethnic minorities have -- on the basis of their politics, rather than their race or ethnicity -- acquired the patronage awards the machine had power to confer. No one disputes the historical accuracy of this observation, and there is no reason to think that patronage can no longer serve that function. The abolition of patronage, however, prevents groups that have only recently obtained political power, especially blacks, from following this path to economic and social advancement.
Every ethnic group that has achieved political power in American cities has used the bureaucracy to provide jobs in return for political support. It's only when Blacks begin to play the same game that the rules get changed. Now the use of such jobs to build political bases becomes an "evil" activity, and the city insists on taking the control back "downtown."
New York Amsterdam News, Apr. 1, 1978, p. A-4, quoted in Hamilton, The Patron-Recipient Relationship and Minority Politics in New York City, 94 Pol.Sci.Q. 211, 212 (1979).
While the patronage system has the benefits argued for above, it also has undoubted disadvantages. It facilitates financial corruption, such as salary kickbacks and partisan political activity on government-paid time. It reduces the efficiency [p109] of government, because it creates incentives to hire more and less-qualified workers and because highly qualified workers are reluctant to accept jobs that may only last until the next election. And, of course, it applies some greater or lesser inducement for individuals to join and work for the party in power.
To hear the Court tell it, this last is the greatest evil. That is not my view, and it has not historically been the view of the American people. Corruption and inefficiency, rather than abridgement of liberty, have been the major criticisms leading to enactment of the civil-service laws -- for the very good reason that the patronage system does not have as harsh an effect upon conscience, expression, and association as the Court suggests. As described above, it is the nature of the pragmatic, patronage-based, two-party system to build alliances and to suppress rather than foster ideological tests for participation in the division of political "spoils." What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself, rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position; but if that position is rejected, he must vote and work for the party nonetheless. The diversity of political expression (other than expression of party loyalty) is channeled, in other words, to a different stage -- to the contests for party endorsement, rather than the partisan elections. It is undeniable, of course, that the patronage system entails some constraint upon the expression of views, particularly at the partisan-election stage, and considerable constraint upon the employee's right to associate with the other party. It greatly exaggerates these, however, to describe them as a general "‘coercion of belief,'" ante at 71, quoting Branti, 445 U.S. at 516; see also ante at 75; Elrod, 427 U.S. at 355 (plurality opinion). Indeed, it greatly exaggerates them to call them "coercion" at all, since we generally make a distinction between inducement and compulsion. The public official [p110] offered a bribe is not "coerced" to violate the law, and the private citizen offered a patronage job is not "coerced" to work for the party. In sum, I do not deny that the patronage system influences or redirects, perhaps to a substantial degree, individual political expression and political association. But, like the many generations of Americans that have preceded us, I do not consider that a significant impairment of free speech or free association.
In emphasizing the advantages and minimizing the disadvantages (or at least minimizing one of the disadvantages) of the patronage system, I do not mean to suggest that that system is best. It may not always be; it may never be. To oppose our Elrod-Branti jurisprudence, one need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable, but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people's elected representatives. The choice in question, I emphasize, is not just between patronage and a merit-based civil service, but rather among various combinations of the two that may suit different political units and different eras: permitting patronage hiring, for example, but prohibiting patronage dismissal; permitting patronage in most municipal agencies but prohibiting it in the police department; or permitting it in the mayor's office but prohibiting it everywhere else. I find it impossible to say that, always and everywhere, all of these choices fail our "balancing" test.
The last point explains why Elrod and Branti should be overruled, rather than merely not extended. Even in the field of constitutional adjudication, where the pull of stare decisis is at its weakest, see Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of Harlan, J.), one is reluctant to depart from precedent. But when that precedent is not only wrong, not only recent, not only contradicted by a long prior [p111] tradition, but also has proved unworkable in practice, then all reluctance ought to disappear. In my view that is the situation here. Though unwilling to leave it to the political process to draw the line between desirable and undesirable patronage, the Court has neither been prepared to rule that no such line exists (i.e., that all patronage is unconstitutional) nor able to design the line itself in a manner that judges, lawyers, and public employees can understand. Elrod allowed patronage dismissals of persons in "policymaking" or "confidential" positions. 427 U.S. at 367 (plurality opinion); id. at 375 (Stewart, J., concurring). Branti retreated from that formulation, asking instead
whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
445 U.S. at 518. What that means is anybody's guess. The Courts of Appeals have devised various tests for determining when "affiliation is an appropriate requirement." See generally Martin, A Decade of Branti Decisions: A Government Officials' Guide to Patronage Dismissals, 39 Am.U.L.Rev. 11, 23-42 (1989). These interpretations of Branti are not only significantly at variance with each other, they are still so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders its decision.
A few examples will illustrate the shambles Branti has produced. A city cannot fire a deputy sheriff because of his political affiliation, [n5] but then again perhaps it can, [n6] especially if he is called the "police captain." [n7] A county cannot fire on that basis its attorney for the department of social [p112] services, [n8] nor its assistant attorney for family court, [n9] but a city can fire its solicitor and his assistants, [n10] or its assistant city attorney, [n11] or its assistant state's attorney, [n12] or its corporation counsel. [n13] A city cannot discharge its deputy court clerk for his political affiliation, [n14] but it can fire its legal assistant to the clerk on that basis. [n15] Firing a juvenile court bailiff seems impermissible, [n16] but it may be permissible if he is assigned permanently to a single judge. [n17] A city cannot fire on partisan grounds its director of roads, [n18] but it can fire the second in command of the water department. [n19] A government cannot discharge for political reasons the senior vice president of its development bank, [n20] but it can discharge the regional director of its rural housing administration. [n21]
The examples could be multiplied, but this summary should make obvious that the "tests" devised to implement Branti have produced inconsistent and unpredictable results. That uncertainty undermines the purpose of both the nonpatronage [p113] rule and the exception. The rule achieves its objective of preventing the "coercion" of political affiliation, see supra at 97, only if the employee is confident that he can engage in (or refrain from) political activities without risking dismissal. Since the current doctrine leaves many employees utterly in the dark about whether their jobs are protected, they are likely to play it safe. On the other side, the exception was designed to permit the government to implement its electoral mandate. Elrod, supra, at 367 (plurality opinion). But unless the government is fairly sure that dismissal is permitted, it will leave the politically uncongenial official in place, since an incorrect decision will expose it to lengthy litigation and a large damage award, perhaps even against the responsible officials personally.
This uncertainty and confusion are not the result of the fact that Elrod, and then Branti, chose the wrong "line." My point is that there is no right line -- or at least no right line that can be nationally applied and that is known by judges. Once we reject as the criterion a long political tradition showing that party-based [p114] employment is entirely permissible, yet are unwilling (as any reasonable person must be) to replace it with the principle that party-based employment is entirely impermissible, we have left the realm of law and entered the domain of political science, seeking to ascertain when and where the undoubted benefits of political hiring and firing are worth its undoubted costs. The answer to that will vary from State to State, and indeed from city to city, even if one rejects out of hand (as the Branti line does) the benefits associated with party stability. Indeed, the answer will even vary from year to year. During one period, for example, it may be desirable for the manager of a municipally owned public utility to be a career specialist, insulated from the political system. During another, when the efficient operation of that utility or even its very existence has become a burning political issue, it may be desirable that he be hired and fired on a political basis. The appropriate "mix" of party-based employment is a political question if there ever was one, and we should give it back to the voters of the various political units to decide, through civil-service legislation crafted to suit the time and place, which mix is best.
Even were I not convinced that Elrod and Branti were wrongly decided, I would hold that they should not be extended beyond their facts, viz., actual discharge of employees for their political affiliation. Those cases invalidated patronage firing in order to prevent the "restraint it places on freedoms of belief and association." Elrod, 427 U.S. at 355 (plurality opinion); see also id. at 357 (patronage "compels or restrains" and "inhibits" belief and association). The loss of one's current livelihood is an appreciably greater constraint than such other disappointments as the failure to obtain a promotion or selection for an uncongenial transfer. Even if the "coercive" effect of the former has been held always to outweigh the benefits of party-based employment decisions, the "coercive" effect of the latter should not be. We have drawn a line between firing and other employment decisions in other contexts, see Wygant v. Jackson Bd. of Education, 476 U.S. 267, 282-283 (1986) (plurality opinion), and should do so here as well.
I would reject the alternative that the Seventh Circuit adopted in this case, which allows a cause of action if the employee can demonstrate that he was subjected to the "substantial equivalent of dismissal." 868 F.2d 943, 950, 954 (CA7 1989). The trouble with that seemingly reasonable standard is that it is so imprecise that it will multiply yet again the harmful uncertainty and litigation that Branti has already created. If Elrod and Branti are not to be reconsidered in light of their demonstrably unsatisfactory consequences, I would go no further than to allow a cause of action when the employee has lost his position, that is, his formal title and salary. That narrow ground alone is enough to resolve the constitutional [p115] claims in the present case. Since none of the plaintiffs has alleged loss of his position because of affiliation, [n22] I would affirm the Seventh Circuit's judgment insofar as it affirmed the dismissal of petitioners' claims, and would reverse the Seventh Circuit's judgment insofar as it reversed the dismissal of cross-respondent's claims.
The Court's opinion, of course, not only declines to confine Elrod and Branti to dismissals in the narrow sense I have proposed but, unlike the Seventh Circuit, even extends those opinions beyond "constructive" dismissals -- indeed, even beyond adverse treatment of current employees -- to all hiring decisions. In the long run, there may be cause to rejoice in that extension. When the courts are flooded with litigation under that most unmanageable of standards (Branti) brought by that most persistent and tenacious of suitors (the disappointed office-seeker), we may be moved to reconsider our intrusion into this entire field.
In the meantime, I dissent.
1. The customary invocation of Brown v. Board of Education, 347 U.S. 483 (1954), as demonstrating the dangerous consequences of this principle, see ante at 82 (STEVENS, J., concurring), is unsupportable. I argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede the Constitution. In my view, the Fourteenth Amendment's requirement of "equal protection of the laws," combined with the Thirteenth Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. Moreover, even if one does not regard the Fourteenth Amendment as crystal clear on this point, a tradition of unchallenged validity did not exist with respect to the practice in Brown. To the contrary, in the 19th century, the principle of "separate-but-equal" had been vigorously opposed on constitutional grounds, litigated up to this Court, and upheld only over the dissent of one of our historically most respected Justices. See Plessy v. Ferguson, 163 U.S. 537, 555-556 (1896) (Harlan, J., dissenting).
2. Justice STEVENS seeks to counteract this tradition by relying upon the supposed "unequivocal repudiation" of the right-privilege distinction. Ante at 83. That will not do. If the right-privilege distinction was once used to explain the practice, and if that distinction is to be repudiated, then one must simply devise some other theory to explain it. The order of precedence is that a constitutional theory must be wrong if its application contradicts a clear constitutional tradition, not that a clear constitutional tradition must be wrong if it does not conform to the current constitutional theory. On Justice STEVENS' view of the matter, this Court examines a historical practice, endows it with an intellectual foundation, and later, by simply undermining that foundation, relegates the constitutional tradition to the dustbin of history. That is not how constitutional adjudication works. Cf. Burnham v. Superior Court of California, Marin County, 495 U.S. 604 (1990) (opinion of SCALIA, J.). I am not sure, in any event, that the right-privilege distinction has been as unequivocally rejected as Justice STEVENS supposes. It has certainly been recognized that the fact that the government need not confer a certain benefit does not mean that it can attach any conditions whatever to the conferral of that benefit. But it remains true that certain conditions can be attached to benefits that cannot be imposed as prescriptions upon the public at large. If Justice STEVENS chooses to call this something other than a right-privilege distinction, that is fine and good -- but it is, in any case, what explains the nonpatronage restrictions upon federal employees that the Court continues to approve, and there is no reason why it cannot support patronage restrictions as well.
3. The Court calls our description of the appropriate standard of review "questionable," and suggests that these cases applied strict scrutiny ("even were Justice SCALIA correct that less-than-strict scrutiny is appropriate"). Ante at 70, n. 4 (emphasis added). This suggestion is incorrect, does not aid the Court's argument, and, if accepted would eviscerate the strict-scrutiny standard. It is incorrect because even a casual perusal of the cases reveals that the governmental actions were sustained not because they were shown to be "narrowly tailored to further vital government interests," ante at 74, but because they were "reasonably" deemed necessary to promote effective government. It does not aid the Court's argument, moreover, because whatever standard those cases applied must be applied here, and if the asserted interests in patronage are as weighty as those proffered in the previous cases, then Elrod and Branti were wrongly decided. It eviscerates the standard, finally, because, if the practices upheld in those cases survived strict scrutiny, then the so-called "strict scrutiny" test means nothing. Suppose a State made it unlawful for an employee of a privately owned nuclear power plant to criticize his employer. Can there be any doubt that we would reject out of hand the State's argument that the statute was justified by the compelling interest in maintaining the appearance that such employees are operating nuclear plants properly, so as to maintain public confidence in the plants' safety? But cf. CSC v. Letter Carriers, 413 U.S. 548, 565 (1973) (Hatch Act justified by need for government employees to "appear to the public to be avoiding [political partiality], if confidence in the system of representative Government is not to be eroded"). Suppose again that a State prohibited a private employee from speaking on the job about matters of private concern. Would we even hesitate before dismissing the State's claim that the compelling interest in fostering an efficient economy overrides the individual's interest in speaking on such matters? But cf. Connick v. Myers, 461 U.S. 138, 147 (1983) ("[W]hen a public employee speaks . . . upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior"). If the Court thinks that strict scrutiny is appropriate in all these cases, then it should forthrightly admit that Public Workers v. Mitchell, 330 U.S. 75 (1947), Letter Carriers, supra; Pickering v. Board of Education of Township High School Dist., 391 U.S. 563 (1968), Connick, and similar cases were mistaken, and should be overruled; if it rejects that course, then it should admit that those cases applied, as they said they did, a reasonableness test.
The Court's further contention that these cases are limited to the "interests that the government has in its capacity as an employer," ante at 70, n. 4, as distinct from its interests "in the structure and functioning of society as a whole," ibid., is neither true nor relevant. Surely a principal reason for the statutes that we have upheld preventing political activity by government employees -- and indeed the only substantial reason, with respect to those employees who are permitted to be hired and fired on a political basis -- is to prevent the party in power from obtaining what is considered an unfair advantage in political campaigns. That is precisely the type of governmental interest at issue here. But even if the Court were correct, I see no reason in policy or principle why the government would be limited to furthering only its interests "as employer." In fact, we have seemingly approved the furtherance of broader governmental interests through employment restrictions. In Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), we held unlawful a Civil Service Commission regulation prohibiting the hiring of aliens on the ground that the Commission lacked the requisite authority. We were willing, however, to
assume . . . that, if the Congress or the President had expressly imposed the citizenship requirement, it would be justified by the national interest in providing an incentive for aliens to become naturalized, or possibly even as providing the President with an expendable token for treaty negotiating purposes.
Id. at 105. Three months after our opinion, the President adopted the restriction by Executive Order. Exec.Order No. 11935, 3 CFR 146 (1976 Comp.). On remand, the lower courts denied the Mow Sun Wong plaintiffs relief, on the basis of this new Executive Order and relying upon the interest in providing an incentive for citizenship. Mow Sun Wong v. Hampton, 435 F.Supp. 37 (ND Cal.1977), aff'd, 626 F.2d 739 (CA9 1980). We denied certiorari sub nom. Lum v. Campbell, 450 U.S. 959 (1981). In other cases, the lower federal courts have uniformly reached the same result. See, e.g., Jalil v. Campbell, 192 U.S.App. D.C. 4, 7, 590 F.2d 1120, 1123, n. 3 (1978); Vergara v. Hampton, 581 F.2d 1281 (CA7 1978), cert. denied, 441 U.S. 905 (1979); Santin Ramos v. United States Civil Service Comm'n, 430 F.Supp. 422 (PR 1977) (three-judge court).
4. Justice STEVENS discounts these systemic effects when he characterizes patronage as fostering partisan, rather than public, interests. Ante at 88. But, taking Justice STEVENS at his word, one wonders why patronage can ever be an "appropriate requirement for the position involved," ante at 64.
5. Jones v. Dodson, 727 F.2d 1329, 1338 (CA4 1984).
6. McBee v. Jim Hogg County, Texas, 730 F.2d 1009, 1014-1015 (CA5 1984) (en banc).
7. Joyner v. Lancaster, 553 F.Supp. 809, 818 (MDNC 1982), later proceeding, 815 F.2d 20 24 (CA4), cert. denied, 484 U.S. 830 (1987).
8. Layden v. Costello, 517 F.Supp. 860, 862 (NDNY 1981).
9. Tavano v. County of Niagara, New York, 621 F.Supp. 345, 349-350 (WDNY 1985), aff'd mem., 800 F.2d 1128 (CA2 1986).
10. Ness v. Marshall, 660 F.2d 517, 521-522 (CA3 1981); Montaquila v. St. Cyr, 433 A.2d 206, 211 (R.I. 1981).
11. Finkelstein v. Barthelemy, 678 F.Supp. 1255 1265 (ED La 1988).
12. Livas v. Petka, 711 F.2d 798, 800-801 (CA7 1983).
13. Bavoso v. Harding, 507 F.Supp. 313, 316 (SDNY 1980).
14. Barnes v. Bosley, 745 F.2d 501, 508 (CA8 1984), cert. denied, 471 U.S. 1017 (1985).
15. Bauer v. Bosley, 802 F.2d 1058, 1063 (CA8 1986), cert. denied, 481 U.S. 1038 (1987).
16. Elrod v. Burns, 427 U.S. 347, 351 (1976).
17. Balogh v. Charron, 855 F.2d 356 (CA6 1988).
18. Abraham v. Pekarski, 537 F.Supp. 858, 865 (ED Pa 1982), aff'd in part and dismissed in part, 728 F.2d 167 (CA3), cert. denied, 467 U.S. 1242 (1984).
19. Tomczak v. Chicago, 765 F.2d 633 (CA7), cert. denied, 474 U.S. 946 (1985).
20. De Choudens v. Government Development Bank of Puerto Rico, 801 F.2d 5, 10 (CA1 1986) (en banc), cert. denied, 481 U.S. 1013 (1987).
21. Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525 (CA1 1987).
22. Standefer and O'Brien do not allege that their political affiliation was the reason they were laid off, but only that it was the reason they were not recalled. Complaint 9, 21-22, App. to Respondent's Brief in Opposition; 641 F.Supp. 249, 256, 257 (CDIll.1986). Those claims are essentially identical to the claims of persons wishing to be hired; neither fall within the narrow rule of Elrod and Branti against patronage firing.