The Roberts and Alito confirmations are already making a difference in the Supreme Court's willingness to supervise American life.
Ripples From Two Court Choices
In 1892, when First Amendment jurisprudence was in its infancy, Oliver Wendell Holmes, then a justice on the Supreme Judicial Court of Massachusetts, said that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Holmes had a flair for aphorisms, the clarity of which sometimes gave them excessive sweep. What he meant in the case of a policeman fired for collecting money for a political committee was that government has a right, for reasons of efficiency, to discipline an officer for speech that, had it been made by a private citizen, would have had constitutional protection.
In subsequent cases, the U.S. Supreme Court, less lapidary than Holmes but more helpful, modified his doctrine that public employees have no right to contest conditions placed on the terms of their employment, even terms that restrict the exercise of constitutional rights. The court enunciated two standards by which some government workplace speech acquires protection that prevents retaliation by the speaker's superiors.
Last Tuesday, in a decision of special interest to America's 22 million public employees, the Supreme Court, with yet another 5 to 4 ruling, told the Court of Appeals for the 9th Circuit, which is always entertaining but frequently reversed (16 times last term), not to neglect half of those standards. And it told Richard Ceballos, in effect, that Holmes had half a point.
In 2000 Ceballos, a deputy district attorney in Los Angeles -- where the Ramparts Division police corruption scandal was reverberating -- became convinced that police had made "grossly inaccurate" statements to obtain a search warrant. Ceballos wrote a heated memo to his supervisors, one of whom asked him to moderate it. He did, but when they proceeded with the criminal case, he informed the defendant's attorney, who subpoenaed Ceballos, whose testimony at a hearing favored the defense. Ceballos says he was punished by demotion, reassignment and various indignities. These, he charged in a lawsuit, violated his First Amendment rights.
His supervisors deny that decisions taken about Ceballos were retaliatory. Anyway, they say, Supreme Court precedents were intended to prevent myriad employee-employer disagreements from becoming constitutional disputes.
The court has held that the threshold question in such cases is whether the employee spoke as a private citizen and on a matter of public concern . If so, First Amendment protection is possible . But not mandatory, because the second question is whether restrictions on employees' speech are justified by the government's need, which any employer has, for substantial control over employees' words and actions.
Last Tuesday Justice Anthony Kennedy, writing for the court and joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, noted that the court has held that government "cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." But the Ceballos case was not about conditioning employment; it was about whether government employees are constitutionally exempt from discipline related to speech made in the conduct of their official duties. (The federal government and most states already have statutes protecting whistle-blowers.)
The 9th Circuit sided with Ceballos, citing the fact that the subject of his memo was a matter of "public concern." But, Kennedy noted, the 9th Circuit did not consider whether Ceballos's speech was made in his "capacity as a citizen." And: "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
By ignoring the question of whether an employee was or was not speaking "as a citizen," the 9th Circuit's approach would, Kennedy wrote, produce a huge "displacement of managerial discretion by judicial supervision." It would "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business," a flood of "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers."
Ceballos's case was originally argued after Justice Sandra Day O'Connor announced her retirement but before she was replaced by Alito. It was then reargued, which suggests that without Alito the court was split 4 to 4. If so, the addition of Alito enabled the court to prevent the 9th Circuit's approach from pulling the nation's courts even more deeply than they already are into supervising American life.
What were the Roberts and Alito confirmation battles about? That.