Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 39 (1996)

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706

BOARD OF COMM'RS, WABAUNSEE CTY. v. UMBEHR

Scalia, J., dissenting

rather than categorical liability will be the result. O'Hare, post, at 719.

Were all this confusion not enough, the explanatory paragraph makes doubly sure it is not setting forth any comprehensible rule by adding, immediately after its description of how Elrod, rather than the Pickering balancing test, applies in "political affiliation" cases, the following: "It is true, on the other hand, . . . that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some case-by-case adjudication will be required even where political affiliation is the test the government has imposed." O'Hare, post, at 719. As I said in Rutan, "[w]hat that means is anybody's guess." 497 U. S., at 111 (dissenting opinion). Worse still, we learn that O'Hare itself, where the Court does not conduct balancing, may "perhaps [be] includ[ed]" among "those many cases . . . which require balancing" because it is one of the "intermixed" cases I discussed in the paragraph immediately above. Post, at 719. Why, then, one is inclined to ask, did not the Court conduct balancing?

The answer is contained in the next brief paragraph of the O'Hare opinion:

"The Court of Appeals, based on its understanding of the pleadings, considered this simply an affiliation case, and held, based on Circuit precedent, there was no constitutional protection for one who was simply an outside contractor. We consider the case in those same terms, but we disagree with the Court of Appeals' conclusion." Post, at 720.

This is a deus ex machina sent in to rescue the Court's deus ex machina, which was itself overwhelmed by the plot of this tragedy of inconsistency. Unfortunately, this adjutor adjutoris (to overextend, perhaps, my classical analogy) is also unequal to the task: The respondent in this case is entitled to defend the judgment in its favor on the basis of the facts as they were alleged, not as the Court of Appeals took

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