708
Scalia, J., dissenting
that today's O'Hare opinion, if it is not total confusion, must stand for. Nothing else explains how the Court can (1) assert that an "intermixed" case requires Pickering balancing, (2) acknowledge that the complaint here may set forth an "intermixed" case, and yet (3) reverse the dismissal without determining whether the complaint does set forth an "intermixed" case and, if so, proceeding to conduct at least a preliminary Pickering balancing. There is of course no reason in principle why this particular issue should be dismissal proof, and the consequence of making it so, given the burdens of pretrial discovery (to say nothing of trial itself) will be to make litigation on this subject even more useful as a device for harassment and weapon of commercial competition. It must be acknowledged, however, that proceeding this way in the present case has one unquestionable advantage: it leaves it entirely to the District Court to clean up, without any guidance or assistance from us, the mess that we have made—to figure out whether saying "Vote against Paxson," or "Paxson is a hack," or "Paxson's project for a 100,000-seat municipal stadium is wasteful," or whatever else Mr. Gratzi-anna's campaign posters might have said, removes this case from the Political Affiliation Clause of the Constitution and places it within the Right of Free Speech Clause.
One final observation about the sweep of today's holdings. The opinion in Umbehr, having swallowed the camel of First Amendment extension into contracting, in its penultimate paragraph demonstrates the Court's deep-down judicial conservatism by ostentatiously straining out the following gnat: "Finally, we emphasize the limited nature of our decision today. Because Umbehr's suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship." Ante, at 685. The facts in Umbehr, of course, involved the termination of nothing so vague as a "commercial relationship with the government"; the Board
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