497 U.S. 62 (1990), argued 16 Jan. 1990, decided 21 June 1990 by vote of 5 to 4; Brennan for the Court; Stevens concurring, Scalia, Rehnquist, Kennedy, and O’Connor in dissent. Following its earlier decisions against dismissals for party-patronage reasons of non-policy-making government employees in Elrod v. Burns (1976) and Branti v. Finkel (1980), a sharply divided Court now extended First Amendment protection against party tests covering promotions, transfers, recalls from layoffs, and even hiring itself. The tests, plaintiffs asserted, had been applied in Illinois under a Republican governor's order prohibiting state hiring without his express permission. Speaking for a bare majority Justice William J. Brennan held that denying low-level government jobs on partisan grounds would abridge First Amendment rights and that such infringement served no vital government interests that could not be secured by defining work standards for non-policy makers and choosing or dismissing only certain high-level employees on the basis of political views. Nor, Brennan added, was patronage necessary to preserve the democratic process since, in his view, political parties prosper by other means.
Justice Antonin Scalia's dissent, longer than the Court's opinion, was especially blunt. He described the party-enhancing benefits claimed for traditional patronage and, without endorsing the system, argued that a legislative body, not the Court, should be allowed to weigh such benefits against other values. Scalia's dissent was not merely against extending Elrod and Branti; he would have overruled them. Supported by three other justices, and written just before Brennan's resignation from the Court, Scalia's dissent commands attention. Justice John Paul Stevens's opinion, concurring with the Court, responds specifically to Scalia's arguments.
Leon D. Epstein