Elrod v. Burns

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427 U.S. 347 (1976), argued 19 Apr. 1976, decided 28 June 1976 by vote of 5 to 3; Brennan for the Court, Stewart and Blackmun concurring, Burger, Powell, and Rehnquist in dissent, Stevens not participating. Five members of the Court, in two separate opinions, imposed a First Amendment barrier to time-honored party patronage practices. In Cook County, Illinois, a newly elected Democratic sheriff sought to discharge non-civil service employees who were Republican appointees of a previous Republican sheriff. The Supreme Court affirmed a court of appeals judgment for injunctive relief. Although unprotected by civil service laws, the employees were not in policy-making positions, were assumed to be performing their duties satisfactorily, and were being discharged solely because they were Republicans occupying positions now meant for Democrats. Dismissals in these circumstances, the Court declared, severely restrict political belief and association as protected by the First Amendment. More controversially, it also held that such restrictions are not outweighed by any contribution of patronage to the democratic process. Government could serve asserted vital purposes by less restrictive means than patronage dismissals.

Justice William Brennan's plurality opinion seemed to challenge the patronage system so broadly as to raise doubts about even the validity of government hiring of party supporters. Unwilling to join that broad a challenge, Justices Potter Stewart and Harry Blackmun concurred only with reference to the unconstitutionality of discharging nonconfidential, nonpolicy-making employees. In dissent, Justice Lewis Powell wrote an especially strong defense of patronage. It contributed sufficiently, Powell said, so that the state's interest in preserving it is greater than the burden on First Amendment rights.

In Branti v. Finkel (1980), Elrod was extended to protect Republican assistant public defenders from dismissal by a new Democratic public defender. Ten years later, the Court invoked the principles of Elrod and Branti to invalidate patronage practices in promotions, transfers, recalls from layoffs, and hiring in its decision in *Rutan v. Republican Party of Illinois (1990).

Leon D. Epstein

Subjects: Law.

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