A six-member majority in Branti, led by Justice John Paul Stevens, considered Elrod controlling, while the dissenters determined the firings in this case were different from those ruled unconstitutional in Elrod.
Public defenders allege they were being dismissed because they were not Democrats
Aaron Finkel and Alan Tabakman, both Republican assistant public defenders in Rockland County, New York, filed suit in federal district court alleging the new public defender, Peter Branti Jr., a Democrat, was about to dismiss them because they were not affiliated with or sponsored by a Democrat.
The district court ruled that Branti had selected Finkel and Tabakman for termination based solely on their Republican Party affiliation and that the only way their discharges would be consistent under Elrod was if assistant public defenders were policymaking, confidential employees. The district court ruled they were not. The Second Circuit Court of Appeals affirmed the decision.
In Elrod the Supreme Court found the Cook County, Illinois, Sheriff Department’s patronage-based dismissals of non–civil service employees to violate those workers’ First and 14th Amendment rights to political belief and association.
Court finds patronage system violated First Amendment rights of public employees
Applying the logic of Justice William J. Brennan Jr.’s plurality opinion in Elrod to Branti, Stevens found that Rockland County’s patronage system violated the First Amendment for two reasons.
First, in order to keep their jobs, employees had to swear their allegiance to a particular political party, thereby “compromising their true beliefs.”
Second, the patronage had the effect of “imposing an unconstitutional condition on the receipt of a public benefit,” that is, a job. This brought the case in line with Perry v. Sindermann (1972), in which the Court ruled that a college could not dismiss a nontenured professor simply because of speech critical of the institution’s administration.
If the First Amendment protects an employee’s right to speak, Stevens reasoned, it also protects an employee’s right to his or her political beliefs, at issue in this case. Because Branti was unable to convince the Court of Rockland County’s “overriding interest of vital importance” in having assistant public defenders’ beliefs in line with the appointed public defender, the Court ruled that conditioning the job on political beliefs was not constitutional.
Dissenting judges point to value of party patronage for democratic governance
Justice Lewis F. Powell Jr., writing in dissent for himself and Justices William H. Rehnquist and Potter Stewart, criticized the majority for developing a new, vague standard for determining which government employees can be dismissed because of political beliefs, for relying on inapplicable precedents, and for rejecting the body of political science literature that speaks to the value of party patronage practices for democratic governance.
Stewart, who was in the majority in Elrod, also filed a separate dissent in which he expressed his belief that the public defender should be allowed to dismiss the assistant public defenders because they are not “nonconfidential” employees and because there needs to be mutual trust and confidence between all workers in the office.
This article was originally published in 2009. Kyle L. Kreider is a Professor of Political Science at Wilkes University, where he teaches the Constitutional Law classes. His most recent book is Voting Rights in America: A Reference Handbook, co-authored with Richard A. Glenn (ABC-CLIO, 2020).