704
Scalia, J., dissenting
Circuit's observation in LaFalce v. Houston, 712 F. 2d 292 (1983), that some contractors elect to "curr[y] favor with diverse political parties," on the ground that the fact "[t]hat some citizens [thus] find a way to mitigate governmental overreaching, or refrain from complaining, does not excuse wrongs done to those who exercise their rights." Post, at 724. But whether the government action at issue here is a "wrong" is precisely the issue in this case, which we thought (per Umbehr) was to be determined by "balancing."
One would have thought these two opinions the products of the courts of last resort of two different legal systems, presenting fertile material for a comparative-law course on freedom of speech were it not for a single paragraph in O'Hare, a veritable deus ex machina of legal analysis, which reconciles the irreconcilable. The penultimate paragraph of that portion of the O'Hare opinion which sets forth the general principles of law governing the case, see post, at 719, advises that henceforth "the freedom of speech" alluded to in the Bill of Rights will be divided into two categories: (1) the "right of free speech," where "we apply the balancing test from Pickering," and (since this "right of free speech" presumably does not exhaust the Free Speech Clause) (2) "political affiliation," where we apply the rigid rule of Elrod and Branti. The Court (or at least the O'Hare Court) says that "[t]here is an advantage in so confining the inquiry where political affiliation alone is concerned, for one's beliefs and allegiances ought not to be subject to probing or testing by the government." Post, at 719.
Frankly, the only "advantage" I can discern in this novel distinction is that it provides some explanation (no matter how difficult to grasp) of how these two opinions can issue from the same Court on the same day. It raises many questions. Does the "right of free speech" (category (1), that is) come into play if the contractor not only is a Republican, but says, "I am a Republican"? (At that point, of course,
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