I Love the Smell of a 5-4 Decision in the Morning
I also love it in the evening after dinner, which is when I read it. Being stuck in an office all day is really cramping my posting style.
Anyway, the Supreme Court decided an interesting First Amendment case today by a tight 5-4 decision. The case, Garcetti v Ceballos, had to be reargued after Justice O'Connor left the Court earlier this year. A little deductive reasoning (or subtraction) will tell you that her departure made the case a 4-4 decision. Justice Alito cast the deciding vote in this case, siding with Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.
The decision limits the protections that government employees have when they "blow the whistle" on perceived knavery at the job. The AP has some background on the case itself...
It seems clear, even to the AP, that Justice David Souter's tome-like dissent was the original, pre-Alito majority opinion. Justice Kennedy gets a lot of needling from people, including me, about his wishy-washy approach to Constitutional law. However, he is a conservative vote on many issues. I think that the current Court will line up in this 5-4 split often, but not always (not by a long shot...).
Marty Lederman at SCOTUS has some interesting analysis of the case here.
EDIT: The more I think about this case, the more interesting it is. Is this even really a "whistleblower" case? It (the drafting of the memo) seems more like an action and less like speech. Interesting. I'm going to bat this around in my head for a while and try to find some more comments about it.
Anyway, the Supreme Court decided an interesting First Amendment case today by a tight 5-4 decision. The case, Garcetti v Ceballos, had to be reargued after Justice O'Connor left the Court earlier this year. A little deductive reasoning (or subtraction) will tell you that her departure made the case a 4-4 decision. Justice Alito cast the deciding vote in this case, siding with Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.
The decision limits the protections that government employees have when they "blow the whistle" on perceived knavery at the job. The AP has some background on the case itself...
The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.Writing for the majority, Justice Kennedy said that Ceballos' bosses could punish him if they thought the memo was inflammatory...
"Proper application of our precedents leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities."But the speech door isn't totally shut...
Kennedy said that government workers "retain the prospect of constitutional protection for their contributions to the civic discourse." They do not, Kennedy said, have "a right to perform their jobs however they see fit."The AP thinks that there will be big push for Congress to enact more protections for federal workers. That could lead to an interesting election year fight.
It seems clear, even to the AP, that Justice David Souter's tome-like dissent was the original, pre-Alito majority opinion. Justice Kennedy gets a lot of needling from people, including me, about his wishy-washy approach to Constitutional law. However, he is a conservative vote on many issues. I think that the current Court will line up in this 5-4 split often, but not always (not by a long shot...).
Marty Lederman at SCOTUS has some interesting analysis of the case here.
EDIT: The more I think about this case, the more interesting it is. Is this even really a "whistleblower" case? It (the drafting of the memo) seems more like an action and less like speech. Interesting. I'm going to bat this around in my head for a while and try to find some more comments about it.
