690
Scalia, J., concurring in judgment
offends the doctrine that constitutional questions that need not be addressed should be avoided.
The requirement of a pretext inquiry, I think, renders creation of the new First Amendment right of investigation not only superfluous to the disposition of the present case, but superfluous to the protection of previously established speech rights. Justice O'Connor makes no attempt to justify the right of investigation on historical grounds (it is quite unheard of). The entire asserted basis for it is pragmatic and functional: without it the government employee's right not to be fired for his speech cannot be protected. The availability of a pretext inquiry disproves that argument. Judicial inquiry into the genuineness of a public employer's asserted permissible justification for an employment decision—be it unprotected speech, general insubordination, or laziness—is all that is necessary to avoid the targeting of "public interest" speech condemned in Pickering.
Our cases have hitherto considered this sort of inquiry all the protection needed. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), involved an arguably weaker case for the public employer than the present one, in that there was a "mixed motive" for the disciplinary action—that is, the employer admitted that the "public concern" speech was part of the reason for the discharge, but asserted that other valid reasons were in any event sufficient. In deciding that case, we found no need to invent procedural requirements, but simply directed the District Court "to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's [e]mployment even in the absence of the protected conduct." Id., at 287. The objective, we said, was to "protec[t] against the invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights." Ibid.
The Court considers "pretext" analysis sufficient in many other areas. See, e. g., Eastman Kodak Co. v. Image Techni-
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