698
Scalia, J., dissenting
would occur if the burden were not imposed.5 The Court in Umbehr dismisses the risk of litigation, not by analogy to the employment context, but by analogy to the many government-contracting laws of the type I have discussed. "We are aware," it says, "of no evidence of excessive or abusive litigation under such provisions." Ante, at 684. I am not sure the Court would be aware of such evidence if it existed, but if in fact litigation has been "nonexcessive" (a conveniently imprecise term) under these provisions, that is scant indication that it will be "nonexcessive" under the First Amendment. Uncertainty breeds litigation. Government-contracting laws are clear and detailed, and whether they have been violated is typically easy to as-5 O'Hare makes a brief attempt to minimize the seriousness of the litigation concern, pointing out that "[t]he amicus brief filed on behalf of respondents' position represents that in the six years since our opinion in [Rutan] . . . only 18 suits alleging First Amendment violations in employment decisions have been filed against Illinois state officials." Post, at 724. In fact the brief said "at least eighteen cases," Brief for Illinois State Officials as Amici Curiae 3 (emphasis added), and that includes only suits against state officials, and not those against the officials of Illinois' 102 counties or its even more numerous municipalities. Those statistics pertain to employment suits, moreover—and as I have discussed, the contracting suits will be much more numerous.
O'Hare also says that "we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals first recognized such claims, see Abercrombie v. Catoosa, 896 F. 2d 1228 (1990)." Post, at 724. With respect, Abercrombie (which discussed this issue in two short paragraphs) was such an obscure case that even the District Court in Umbehr, located in the Tenth Circuit, did not cite it, though it discussed cases in other jurisdictions. Umbehr v. McClure, 840 F. Supp. 837 (Kan. 1993). And when the Tenth Circuit reversed the District Court, it did not do so on the basis of Abercrombie—which, it noted, had "simply assumed that an independent contractor could assert a First Amendment retaliation claim" and had given "little reasoning" to the matter but merely so "suggested, without analysis." 44 F. 3d 876, 880 (1995) (emphasis added). Abercrombie was, in short, such a muffled clarion that even the courts did not hear it, much less the public at large.
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