In the run-up to the oral argument in Friedrichs we’ve paid a lot of attention to Justice Scalia’s concurrence in Lehnert v. Ferris Faculty Ass’n. But, to date, we’ve largely ignored another Scalia opinion that deserves much more attention.  That opinion is Justice Scalia’s dissent in Rutan v. Republican Party of Illinois.

The question in Rutan was whether the First Amendment allowed Illinois to condition the hiring and promotion of public employees on the following factors: “whether the applicant [for the job or promotion] has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels.”  The Rutan majority held that by conditioning hiring and promotion decisions on support for a political party the state coerced political belief and association and thereby violated the First Amendment.   As the majority put it, “[t]he First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees’ freedom to believe and associate, to not believe and not associate.”

Justice Scalia, in a dissenting opinion that Justice Kennedy joined, rejected the Court’s analysis and its holding.  For Scalia, it mattered a great deal that the kinds of patronage systems struck down by the Rutan majority were part of a “long tradition” in American politics that dated back to the beginning of the Republic.  But Justice Scalia’s dissent proceeds by “laying tradition entirely aside” and analyzing the First Amendment claim without reference to the tradition.  And, even without relying on the traditional use of patronage systems, Justice Scalia concludes that conditioning public employment on the types of political support required in Illinois is permissible under the First Amendment.

There is much important material in the Rutan dissent.  It repeatedly stresses, for example, that “[t]he restrictions that the Constitution places upon the government in its capacity as lawmaker . . . are not the same as the restrictions that it places upon the government in its capacity as employer.”  The dissent, moreover, flatly and unambiguously rejects the application of strict scrutiny to cases involving the speech rights of public employees:

Because the restriction on speech is more attenuated when the government conditions employment . . . we have held that government employment decisions taken on the basis of an employee’s speech do not abridge the freedom of speech merely because they fail the narrow-tailoring and compelling-interest tests applicable to direct regulation of speech.

And, as Justice Scalia wrote, “[w]hen the government takes adverse action against an employee on the basis of his political affiliation, the same analysis applies.”

But the most important point about the Rutan dissent is the most basic point about the Rutan dissent.  Justice Scalia, joined by Justice Kennedy, took the position that the government may, consistent with the First Amendment, require its employees to support a particular political party.  Squaring that basic proposition with a holding (in Friedrichs) that the government may not require its employees to support union collective bargaining would be difficult.

Now, the Rutan dissent doesn’t hold that the government can compel support for a political party for any reason at all: the government may not “act in a manner that is patently arbitrary or discriminatory.”  There is a balancing of interests here.  And, with respect to this balancing, the test Justice Scalia finds most appropriate for the public employment context is “whether the practice could be reasonably deemed by the enacting legislature to further a legitimate goal.”  But, for purposes of his dissent, he applies a more exacting standard: “Can the governmental advantages of this employment practice reasonably be deemed to outweigh its ‘coercive’ effects?”

Of course, the outcome of every balancing test turns on the facts of the particular case in which the test is applied, and the government’s interest in a patronage system is different than its interest in a human resource system that relies on collective representation.  But even the balancing engaged in by the Rutan dissenters is relevant to Friedrichs, and for two reasons.  First, on the rights side of the scale, the Rutan dissenters do not believe that compelled support for a political party has “as harsh an effect upon conscience, expression, and association as the Court suggests.”  Why not?  Because “[w]hat the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs.  He is generally free to urge within the organization the adoption of any political position.”  And thus, while the Rutan dissenters “do not deny that the patronage system influences or redirects, perhaps to a substantial degree individual political expression and political association,” they “do not consider that a significant impairment of free speech or association.”  The analogy to the union dues context ought to be completely clear.  Indeed, the restraint on First Amendment interests is – if anything – greater in Rutan than in the union dues setting.

Second, on the government-interest side of the scale, the Rutan dissenters are equally clear about how much deference the state ought to get when it comes to the reasonableness of its proffered interest in compelling political support.  “[O]ne need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable; but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people’s elected representatives.”

Neither Justice Scalia nor Justice Kennedy has yet voted to overrule Abood.  If they remain consistent with the views they expressed in Rutan, they won’t vote to overrule it in Friedrichs.