Cite as: 518 U. S. 668 (1996)
Scalia, J., dissenting
at 110-111. At the very least, the dissenters maintained, Elrod and Branti "should not be extended beyond their facts." 497 U. S., at 114.
Today, with the addition to the Court of another Justice who believes that we have no basis for proscribing as unconstitutional practices that do not violate any explicit text of the Constitution and that have been regarded as constitutional ever since the framing, see, e. g., Bennis v. Michigan, 516 U. S. 442, 454-455 (1996) (Thomas, J., concurring), one would think it inconceivable that Elrod and Branti would be extended far beyond Rutan to the massive field of all government contracting. Yet amazingly, that is what the Court does in these two opinions—and by lopsided votes, at that. It is profoundly disturbing that the varying political practices across this vast country, from coast to coast, can be transformed overnight by an institution whose conviction of what the Constitution means is so fickle.
The basic reason for my dissent today is the same as one of the reasons I gave (this one not joined by Justice O'Connor) in Rutan:
"[W]hen a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. When it appears that the latest 'rule,' or 'three-part test,' or 'balancing test' devised by the Court has placed us on a collision course with such a landmark practice, it is the
687
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