THE LAWSUIT brought by that assistant district attorney from New Orleans, fired for criticizing her boss, has been treated as if the only issue involved were the First Amendment rights of a public employee. She claimed that her right to criticize the performance of the elected district attorney was "chilled" when she was fired. The Supreme Court accepted that framework. The four members who ruled in her favor and the five-member majority that did not both agreed that she couldn't be fired for making statements of "public concern." They disagreed, and she lost, only because the majority felt that her statements either were not of public concern or were "an act of insubordination which interfered with working relationships."
But that's not what this case was about at all, and the court reached the right result only for a wrong reason which is likely to cause a lot of mischief. The assistant district attorney in question was a political appointee. District attorneys are elected in New Orleans and in most places in the United States because their work requires high skills and judgments about which reasonable people can and do differ; they are held accountable by the voters for the judgments and decisions they and their assistants make.
The court apparently is saying that the First Amendment prohibits an elected official from firing a top appointee who criticizes him. It's a result that would give Alexander Haig standing to go into court and get back his job as secretary of state.
The court has missed what this case is really all about: the right of the public to get the kind of government it voted for. This is not the first time the court has made this mistake. In 1976 it ruled that a newly elected Democratic sheriff of Cook County, Ill., could not discharge the Republican non-civil service employees appointed by his predecessor. But, as anyone familiar with Chicago politics knows, that's exactly what the voters of Cook County wanted the new sheriff to do when they voted for him.
It's entirely fitting that the court has, in a line of cases going back to the '50s, shored up the First Amendment rights of employees with civil service protections and of teachers covered by tenure laws. But there is a line to be drawn between ordinary civil servants and political appointees. It should be drawn somewhat short of the place where elected officials cannot hire and fire direct subordinates in positions not covered by civil service. You cannot-- and should not--keep politics entirely out of government.