RUTAN v. REPUBLICAN PARTY OF ILLINOIS 497 U.S. 62 (1990)

The governor of Illinois prohibited state entities under his control from hiring any employees without his express consent. Because more than 5,000 state positions become vacant in Illinois each year, this policy allowed the governor to make several thousand additional appointments. Evidence suggested that the governor's hiring policy operated as a patronage system, with the governor restricting appointments to people who belonged to his political party. Persons alleging that they had been denied jobs, promotions, transfers, or recall after layoffs because of their party affiliation filed suit, claiming that these employment practices violated their rights of speech and association guaranteed by the first amendment. The challenge was based on previous cases such as Elrod v. Burns (1976), where the Court had held that the First Amendment barred political affiliation from being used as a reason for dismissal from most governmental jobs. In Rutan, the Court ruled 5–4 to extend the doctrine of Elrod v. Burns to promotions, transfers, recall from layoffs, and hiring decisions.

Writing for the majority, Justice william j. brennan applied the compelling state interest test used by the Court in many other types of cases, arguing that patronage clearly violates the First Amendment unless it is "narrowly tailored to further vital government interests." In Brennan's view, a general patronage system manifestly fails this test because it is not necessary to maintain either strong political parties or employee loyalty; these goals can be achieved by other means, such as having a handful of senior positions filled by political appointees.

Justice antonin scalia, writing for the dissenters, argued that the compelling-interest standard was inappropriate for this case because the government was acting in the role of employer. Numerous decisions have upheld the idea that the government has more leeway in regulating the conduct of its employees than it does in regulating the behavior of ordinary citizens. According to Scalia, as long as the benefits of an employment practice can "reasonably be deemed to outweigh its "coercive' effects," the practice should pass constitutional muster. In this case, Scalia believed that the perceived benefits clearly outweighed the coercive effects, because patronage has long been regarded as a cornerstone of our party system, "promoting political stability and facilitating the social and political integration of previously powerless groups." Scalia disputed the majority's contention that "parties have already survived" the demise of patronage. Saying the Court's assessment had "a positively whistling-in-thegraveyard character to it," Scalia noted recent evidence of party decline, including the substantial decrease in party competition for congressional seats. Reasonable men and women can differ about the appropriateness of patronage in various contexts, said Scalia; but this is precisely why the Court should respect the federal system and not impose its own will in the matter.

John G. West, Jr.
(1992)