Cite as: 518 U. S. 668 (1996)
Scalia, J., dissenting
cal unit's decision not to enact contracting regulations, or to suspend the regulations in certain circumstances, amounts to a decision to permit some degree of political favoritism. As I shall discuss shortly, O'Hare's and Umbehr's First Amendment permits no such selectivity—or at least none that can be known before litigation is over.
III
If inattention by the democratic organs of government is not a plausible reason for the Court's entry into the field, then what is? I believe the Court accepts (any sane person must accept) the premise that it is utterly impossible to erect, and enforce through litigation, a system in which no citizen is intentionally disadvantaged by the government because of his political beliefs. I say the Court accepts that, because the O'Hare opinion, in a rare brush with the real world, points out that "O'Hare was not part of a constituency that must take its chance of being favored or ignored in the larger political process—for example, by residing or doing business in a region the government rewards or spurns in the construction of public works." Post, at 720-721. Of course. Government favors those who agree with its political views, and disfavors those who disagree, every day—in where it builds its public works, in the kinds of taxes it imposes and collects, in its regulatory prescriptions, in the design of its grant and benefit programs—in a million ways, including the letting of contracts for government business. What good reason has the Court given for separating out this last way, and declaring it to be (as all the others for some reason are not) an "abridgment of the freedom of speech"?
As I have explained, I would separate the permissible from the impermissible on the basis of our Nation's traditions, which is what I believe sound constitutional adjudication requires. In Elrod and Branti, the Court rejected this criterion—but if what it said did not make good constitutional law, at least it made some sense: the loss of one's job
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