Supreme Court collection
http://www.law.cornell.edu/supct/html/88-1872.ZD.html881872 & 882074DISSENT v. REPUBLICAN PARTY OF ILLINOIS
Nos. 881872 and 882074
CYNTHIA RUTAN, et al., PETITIONERSv.881872
FRECH, et al., PETITIONERSv.882074
on writs of 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 1. 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 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.
snip-->
"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, 616617 (1973).<--snip
:shrug: