Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 34 (1996)

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Cite as: 518 U. S. 668 (1996)

Scalia, J., dissenting

the lowest bidder but to the "lowest responsible bidder." 6 "The word 'responsible' is as important as the word 'lowest,' " H. Cohen, Public Construction Contracts and the Law 81 (1961), and has been interpreted in some States to permit elected officials to exercise political discretion. "Some New York courts," for example, "have upheld agency refusals to award a contract to a low bidder because the contractor, while technically and financially capable, was not morally responsible." Anechiarico & Jacobs 146-147. In the leading case of Picone v. New York, 176 Misc. 967, 29 N. Y. S. 2d 539 (Sup. Ct. N. Y. Cty. 1941), the court stated that in determining whether a lowest bidder for a particular contract was the "lowest responsible bidder," New York City officials had permissibly considered "whether [the bidder] possessed integrity and moral worth." Id., at 969, 29 N. Y. S. 2d, at 541. The New Jersey Supreme Court has similarly said: "It is settled that the legislative mandate that a bidder be 'responsible' embraces moral integrity just as surely as it embraces a capacity to supply labor and materials." Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471, 481, 284 A. 2d 161, 166 (1971). In the future, presumably, this will be permitted only if the disfavored moral views of the bidder have never been verbalized, for otherwise the First Amendment will produce entitlement to the contract, or at least guarantee a lawsuit.

In treading into this area, "we have left the realm of law and entered the domain of political science." Rutan, 497 U. S., at 113 (Scalia, J., dissenting). As Judge Posner rightly perceived, the issue that the Court today disposes of like some textbook exercise in logic "raises profound questions of political science that exceed judicial competence to answer." LaFalce v. Houston, 712 F. 2d, at 294.

6 See, e. g., Cal. Pub. Cont. Code Ann. §§ 10302, 10507.7, 20803 (West 1985 and Supp. 1996); Ill. Comp. Stat., ch. 50, §§ 20/20, 25/3; id., ch. 70, §§ 15/8, 15/9, 205/25, 220/1-24, 220/2-24 (1993); N. Y. Gen. Mun. Law § 103.1 (Mc-Kinney Supp. 1996).

701

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