427 U.S.

347
96 S.Ct. 2673
49 L.Ed.2d 547

Richard J. ELROD, etc., et al., Petitioners,

v.
John BURNS et al.
No. 74-1520.
Argued April 19, 1976.
Decided June 28, 1976.

Syllabus
Respondents, Republicans who are non-civil-service employees of the
Cook County, Ill., Sheriff's Office, brought this suit as a class action for
declaratory, injunctive, and other relief against petitioners, including the
newly elected Sheriff, a Democrat, and county Democratic organizations,
alleging that in violation of the First and Fourteenth Amendments and
various statutes, including the Civil Rights Act of 1871, respondents were
discharged or (in the case of one respondent) threatened with discharge
for the sole reason that they were not affiliated with or sponsored by the
Democratic Party. Finding that respondents had failed to show irreparable
injury, the District Court denied their motion for a preliminary injunction
and ultimately dismissed their complaint for failure to state a claim upon
which relief could be granted. The Court of Appeals reversed and
remanded with instructions to enter appropriate preliminary injunctive
relief. Held: The judgment is affirmed. Pp. 351-374; 374-375.
509 F.2d 1133, affirmed.
Mr. Justice BRENNAN, joined by Mr. Justice WHITE and Mr. Justice
MARSHALL, concluded that:

1. Neither the political-question doctrine nor the separation-of-powers doctrine

makes this case inappropriate for judicial resolution, since, Inter alia, neither
doctrine applies to the federal judiciary's relationship to the States. Pp. 355-373.

2. The practice of patronage dismissals violates the First and Fourteenth

Amendments and respondents thus stated a valid claim for relief. Pp. 355-373.

(a) Patronage dismissals severely restrict political belief and association, which
constitute the core of those activities protected by the First Amendment, and
government may not, without seriously inhibiting First Amendment rights,
force a public employee to relinquish his right to political association as the
price of holding a public job. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct.
2694, 33 L.Ed.2d 570; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct.
675, 17 L.Ed.2d 629. Pp. 355-360.

(b) Though First Amendment rights are not absolute, they may be curtailed
only by interests of vital importance, the burden of proving the existence of
which rests upon the government, Buckley v. Valeo, 424 U.S. 1, 94, 96 S.Ct.
612, 46 L.Ed.2d 659. If conditioning the retention of public employment on the
employee's support of the in-party is to survive constitutional challenge, it must
further some vital government end by a means that is least restrictive of
freedom of belief and association in achieving that end, and the benefit gained
must outweigh the loss of the constitutionally protected rights. Pp. 360-363.

(c) The inefficiency resulting from wholesale replacement of public employees

on a change of administration belies the argument that employees not of the
same political persuasion as the controlling party will not be motivated to work
effectively; nor is it clear that patronage appointees are more qualified than
those they replace. Since unproductive employees may always be discharged
and merit systems are available, it is clear that less drastic means than
patronage dismissals are available to insure the vital need for government
efficiency and effectiveness. Pp. 364-367.

(d) The need to insure that policies that the electorate has sanctioned are
effectively implemented can be fully satisfied by limiting patronage dismissals
to policymaking positions. Pp. 367-368.

(e) Patronage dismissals cannot be justified by their contribution to the proper

functioning of our democratic process through their assistance to partisan
politics, since political parties are nurtured by other methods that are less
intrusive. More fundamentally, any contribution of patronage dismissals to the
democratic process does not suffice to override their severe encroachment on
First Amendment freedoms. Pp. 368-373.

3. Since at the time the preliminary injunction was sought one of the named

respondents was threatened with job loss, as were many of the class that
respondents were seeking to have certified (if they had not already been coerced
into supporting the Democratic Party to avoid discharge), First Amendment
interests were either threatened or being impaired. Thus, irreparable injury was
shown, and since respondents demonstrated a probability of success on the
merits, the issuance of the injunction was properly directed by the Court of
Appeals. Pp. 373-374.
9

Mr. Justice STEWART, joined by Mr. Justice BLACKMUN, concluded that a

nonpolicymaking, nonconfidential government employee may not be
discharged from a job that he is satisfactorily performing, upon the sole ground
of his political beliefs, and that no other issue is involved in this case. Pp. 374375.

10

Thomas A. Foran, Chicago, Ill., for petitioners.

11

John C. Tucker, Chicago, Ill., for respondents.

12

Mr. Justice BRENNAN announced the judgment of the Court and delivered an
opinion in which Mr. Justice WHITE and Mr. Justice MARSHALL joined.

13

This case presents the question whether public employees who allege that they
were discharged or threatened with discharge solely because of their partisan
political affiliation or nonaffiliation state a claim for deprivation of
constitutional rights secured by the First and Fourteenth Amendments.

14

* Respondents brought this suit in the United States District Court for the
Northern District of Illinois against petitioners, Richard J. Elrod, Richard J.
Daley, the Democratic Organization of Cook County, and theemocratic County
Central Committee of Cook County. Their complaint alleged that they were
discharged or threatened with discharge solely for the reason that they were not
affiliated with or sponsored by the Democratic Party. They sought declaratory,
injunctive, and other relief for violations of the First and Fourteenth
Amendments and 42 U.S.C. 1983, 1985, 1986, 1988. Finding that the
respondents failed to make an adequate showing of irreparable injury, the
District Court denied their motion for a preliminary injunction and ultimately
dismissed their complaint for failure to state a claim upon which relief could be
granted. The United States Court of Appeals for the Seventh Circuit, relying on
Illinois State Employees Union v. Lewis, 473 F.2d 561 (CA7 1972), reversed
and remanded, holding that respondents' complaint stated a legally cognizable
claim. The Court of Appeals instructed the District Court to enter appropriate

preliminary injunctive relief. 509 F.2d 1133 (CA7 1975). We granted certiorari.
423 U.S. 821, 96 S.Ct. 33, 46 L.Ed.2d 37. We affirm.1
II
15

In December 1970, the Sheriff of Cook County, a Republican, was replaced by

Richard Elrod, a Democrat. At that time, respondents, all Republicans, were
employees of the Cook County Sheriff's Office. They were non-civil-service
employees and, therefore, not covered by any statute, ordinance, or regulation
protecting them from arbitrary discharge. One respondent, John Burns, was
Chief Deputy of the Process Division and supervised all departments of the
Sheriff's Office working on the seventh floor of the building housing that
office. Frank Vargas was a bailiff and security guard at the Juvenile Court of
Cook County. Fred L. Buckley was employed as a process server in the office.
Joseph Dennard was an employee in the office.

16

It has been the practice of the Sheriff of Cook County, when he assumes office
from a Sheriff of a different political party, to replace non-civil-service
employees of the Sheriffs' Office with members of his own party when the
existing employees lack or fail to obtain requisite support from, or fail to
affiliate with, that party. Consequently, subsequent to Sheriff Elrod's
assumption of office, respondents, with the exception of Buckley, were
discharged from their employment solely because they did not support and were
not members of the Democratic Party and had failed to obtain the sponsorship
of one of its leaders. Buckley is in imminent danger of being discharged solely
for the same reasons. Respondents allege that the discharges were ordered by
Sheriff Elrod under the direction of the codefendants in this suit.

III
17

At the outset, we are met with objections to our consideration of this case based
on the political-question doctrine and the principle of separation of powers.
These objections need not long detain us.

18

A question presented to this Court for decision is properly deemed political

when its resolution is committed by the Constitution to a branch of the Federal
Government other than this Court. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct.
691, 710, 7 L.Ed.2d 663 (1962). Thus, "it is the relationship between the
judiciary and the coordinate branches of the Federal Government, and not the
federal judiciary's relationship to the States, which gives rise to the 'political
question.' " Id., 369 U.S. at 210, 82 S.Ct. at 706. That matters related to a
State's, or even the Federal Government's, elective process are implicated by

this Court's resolution of a question is not sufficient to justify our withholding

decision of the question. In particular, in this case, ware asked only to determine
whether the politically motivated discharge of employees of the Cook County
Sheriff's Office comports with the limitations of the First and Fourteenth
Amendments. This involves solely a question of constitutional interpretation, a
function ultimately the responsibility of this Court. Id., 369 U.S. at 211, 82
S.Ct. at 706. See Powell v. McCormack, 395 U.S. 486, 518-549, 89 S.Ct. 1944,
1962-1978, 23 L.Ed.2d 491 (1969). Petitioners do not, and could not, argue that
a decision as to the constitutionality of the Sheriff's practices should be left to
Congress or the President. The political-question doctrine, therefore, is no
obstacle to judicial review in this case. See Williams v. Rhodes, 393 U.S. 23,
28, 89 S.Ct. 5, 9, 21 L.Ed.2d 24 (1968).
19

Petitioners also object that our review of this case will offend the principle of
separation of powers, for the executive's responsibility to insure that the laws be
faithfully executed requires the power of appointment or removal at will,
unimpaired by any judicial oversight. They cite Myers v. United States, 272
U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), in support of their argument. The
short answer to this argument is that the separation-of-powers principle, like the
political-question doctrine, has no applicability to the federal judiciary's
relationship to the States. The matter in Myers itself was limited to the
permissibility of restraints imposed by Congress on the President concerning
the removal of the executive officers. More fundamentally, however, the
answer to petitioners' objection is that there can be no impairment of executive
power, whether on the state or federal level, where actions pursuant to that
power are impermissible under the Constitution. Where there is no power, there
can be no impairment of power. And our determination of the limits on state
executive power contained in the Constitution is in proper keeping with our
primary responsibility of interpreting that document. It is to such a
determination that we now turn.

IV
20

The Cook County Sheriff's practice of dismissing employees on a partisan basis

is but one form of the general practice of political patronage. 2 The practice also
includes placing loyal supporters in government jobs that may or may not have
been made available by political discharges. Nonofficeholders may be the
beneficiaries of lucrative government contracts for highway construction,
buildings, and supplies. Favored wards may receive improved public services.
Members of the judiciary may even engage in the practice through the
appointment of receiverships, trusteeships, and refereeships. Although political
patronage comprises a broad range of activities, we are here concerned only

with the constitutionality of dismissing public employees for partisan reasons.

21

Patronage practice is not new to American politics. It has existed at the federal
level at least since the Presidency of Thomas Jefferson,3 although its
popularization and legitimation primarily occurred later, in the Presidency of
Andrew Jackson.4 The practice is not unique to American politics. It has been
used in many European countries,5 and in darker times, it played a significant
role in the Nazi rise to power in Germany and other totalitarian states.6 More
recent times have witnessed a strong decline in its use, particularly with respect
to public employment. Indeed, only a few decades after Andrew Jackson's
administration, strong discontent with the corruption and inefficiency of the
patronage system of public employment eventuated in the Pendleton Act,7 the
foundation of modern civil service. And on the state and local levels, merit
systems have increasingly displaced the practice.8 This trend led the Court to
observe in CSC v. National Association of Letter Carriers, 413 U.S. 548, 564,
93 S.Ct. 2880, 2889, 37 L.Ed.2d 796 (1973), that "the judgment of Congress,
the Executive, and the country appears to have been that partisan political
activities by federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in representative
government, and employees themselves are to be sufficiently free from
improper influences."

22

The decline of patronage employment is not, of course relevant to the question

of its constitutionality. It is the practice itself, not the magnitude of its
occurrence, the constitutionality of which must be determined. Nor for that
matter does any unacceptability of the practice signified by its decline indicate
its unconstitutionality. Our inquiry does not begin with the judgment of history,
though the actual operation of a practice viewed in retrospect may help to
assess its workings with respect to constitutional limitations. Compare Brown
v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), with
Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). Rather,
inquiry must commence with identification of the constitutional limitations
implicated by a challenged governmental practice.9

V
23

The cost of the practice of patronage is the restraint it places on freedoms of

belief and association. In order to maintain their jobs, respondents were
required to pledge their political allegiance to the Democratic Party, work for
the election of other candidates of the Democratic Party, contribute a portion of
their wages to the Party, or obtain the sponsorship of a member of the Party,
usually at the price of one of the first three alternatives. Regardless of the

incumbent party's identity, Democratic or otherwise, the consequences for

association and belief are the same. An individual who is a member of the outparty maintains affiliation with his own party at the risk of losing his job. He
works for the election of his party's candidates and espouses its policies at the
same risk. The financial and campaign assistance that he is induced to provide
to another party furthers the advancement of that party's policies to the
detriment of his party's views and ultimately his own beliefs, and any
assessment of his salary is tantamount to coerced belief. See Buckley v. Valeo,
424 U.S. 1, 19, 96 S.Ct. 612, 634-635, 46 L.Ed.2d 659 (1976). Even a pledge of
allegiance to another party, however ostensible, only serves to compromise the
individual's true beliefs. Since the average public employee is hardly in the
financial position to support his party and another, or to lend his time to two
parties, the individual's ability to act according to his beliefs and to associate
with others of his political persuasion is constrained, and support for his party
is diminished.
24

It is not only belief and association which are restricted where political
patronage is the practice. The free functioning of the electoral process also
suffers. Conditioning public employment on partisan support prevents support
of competing political interests. Existing employees are deterred from such
support, as well as the multitude seeking jobs. As government employment,
state or federal, becomes more pervasive, the greater the dependence on it
becomes, and therefore the greater becomes the power to starve political
opposition by commanding partisan support, financial and otherwise. Patronage
thus tips the electoral process in favor of the incumbent party, and where the
practice's scope is substantial relative to the size of the electorate, the impact on
the process can be significant.

25

Our concern with the impact of patronage on political believe and association
does not occur in the abstract, for political belief and association constitute the
core of those activities protected by the First Amendment.10 Regardless of the
nature of the inducement, whether it be by the denial of public employment or,
as in Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed.
1628 (1943), by the influence of a teacher over students, "(i)f there is any fixed
star in our constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith
therein." Id., 319 U.S., at 642, 63 S.Ct., at 1187. And, though freedom of belief
is central, "(t)he First Amendme protects political association as well as
political expression." Buckley v. Valeo, supra, 424 U.S. at 11, 96 S.Ct. at 632.
"There can no longer be any doubt that freedom to associate with others for the
common advancement of political beliefs and ideas is a form of 'orderly group

activity' protected by the First and Fourteenth Amendments. NAACP v. Button,

371 U.S. 415, 430, 83 S.Ct. 328, 336, 9 L.Ed.2d 405; Bates v. Little Rock, 361
U.S. 516, 522-523, 80 S.Ct. 412, 416-417, 4 L.Ed.2d 480; NAACP v. Alabama,
357 U.S. 449, 460-461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. The right to
associate with the political party of one's choice is an integral part of this basic
constitutional freedom." Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303,
307, 38 L.Ed.2d 260 (1973).
26

These protections reflect our "profound national commitment to the principle

that debate on public issues should be uninhibited, robust, and wide-open,"
New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11
L.Ed.2d 686 (1964), a principle itself reflective of the fundamental
understanding that "(c)ompetition in ideas and governmental policies is at the
core of our electoral process . . . ." Williams v. Rhodes, 393 U.S., at 32, 89
S.Ct., at 11. Patronage, therefore to the extent it compels or restrains belief and
association is inimical to the process which undergirds our system of
government and is "at war with the deeper traditions of democracy embodied in
the First Amendment." Illinois State Employees Union v. Lewis, 473 F.2d, at
576. As such, the practice unavoidably confronts decisions by this Court either
invalidating or recognizing as invalid government action that inhibits belief and
association through the conditioning of public employment on political faith.

27

The Court recognized in United Public Workers v. Mitchell, 330 U.S. 75, 100,
67 S.Ct. 556, 569, 91 L.Ed. 754 (1947), that "Congress may not 'enact a
regulation providing that no Republican, Jew or Negro shall be appointed to
federal office . . . .' " This principle was reaffirmed in Wieman v. Updegraff,
344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), which held that a State could
not require its employees to establish their loyalty by extracting an oath denying
past affiliation with Communists. And in Cafeteria Workers v. McElroy, 367
U.S. 886, 898, 81 S.Ct. 1743, 1750, 6 L.Ed.2d 1230 (1961), the Court
recognized again that the government could not deny employment because of
previous membership in a particular party.11

28

Particularly pertinent to the constitutionality of the practice of patronage

dismissals are Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17
L.Ed.2d 629 (1967), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972). In Keyishian, the Court invalidated New York statutes
barring employment merely on the basis of membership in "subversive"
organizations. Keyishian squarely held that political association alone could
not, consistently with the First Amendment, constitute an adequate ground for
denying public employment.12 In Perry, the Court broadly rejected thealidity of
limitations on First Amendment rights as a condition to the receipt of a

governmental benefit, stating that the government "may not deny a benefit to a
person on a basis that infringes his constitutionally protected interests
especially, his interest in freedom of speech. For if the government could deny
a benefit to a person because of his constitutionally protected speech or
associations, his exercise of those freedoms would in effect be penalized and
inhibited. This would allow the government to 'produce a result which (it)
could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct.
1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is
impermissible." 408 U.S., at 597, 92 S.Ct. at 2697.
29

Patronage practice falls squarely within the prohibitions of Keyishian and

Perry. Under that practice, public employees hold their jobs on the condition
that they provide, in some acceptable manner, support for the favored political
party. The threat of dismissal for failure to provide that support unquestionably
inhibits protected belief and association, and dismissal for failure to provide
support only penalizes its exercise. The belief and association which
government may not ordain directly are achieved by indirection.13 And
regardless of how evenhandedly these restraints may operate in the long run,
after political office has changed hands several times, protected interests are
still infringed and thus the violation remains.

VI
30

Although the practice of patronage dismissals clearly infringes First

Amendment interests, our inquiry is not at an end, for the prohibition on
encroachment of First Amendment protections is not an absolute. Restraints are
permitted for appropriate reasons. Keyishian and Perry, however, not only
serve to establish a presumptive prohibition on infringement, but also serve to
dispose of one suggested by petitioners' reference to this Court's affirmance by
an equally divided court in Bailey v. Richardson, 341 U.S. 918, 71 S.Ct. 669,
95 L.Ed. 1352 (1951), aff'g 86 U.S.App.D.C. 248, 182 F.2d 46 (1950).14 That
is the notion that because there is no right to a government benefit, such as
public employment, the benefit may be denied for any reason. Perry, however,
emphasized that "[f]or at least a quarter-century, this Court has made clear that
even though a person has no 'right' to a valuable governmental benefit and even
though the government may deny him the benefit for any number of reasons,
there are some reasons upon which the government may not rely." 408 U.S., at
597, 92 S.Ct., at 2697. Perry and Keyishian properly recognizene such
impermissible reason: The denial of a public benefit may not be used by the
government for the purpose of creating an incentive enabling it to achieve what
it may not command directly. " '[T]he theory that public employment which
may be denied altogether may be subjected to any conditions, regardless of

how unreasonable, has been uniformly rejected.' " Keyishian v. Board of

Regents, 385 U.S., at 605-606, 87 S.Ct., at 685. "It is too late in the day to
doubt that the liberties of religion and expression may be infringed by the
denial of or placing of conditions upon a benefit or privilege." Sherbert v.
Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). "
'[T]his Court now has rejected the concept that constitutional rights turn upon
whether a governmental benefit is characterized as a "right" or as a "privilege" '
" Sugarman v. Dougall, 413 U.S. 634, 644, 93 S.Ct. 2842, 2848, 37 L.Ed.2d
853 (1973) (quoting Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848,
1853, 29 L.Ed.2d 534 (1971)). 15
31

While the right-privilege distinction furnishes no ground on which to justify

patronage, petitioners raise several other justifications requiring consideration.
Before examining those justifications, however, it is necessary to have in mind
the standards according to which their sufficiency is to be measured. It is firmly
established that a significant impairment of First Amendment rights must
survive exacting scrutiny. Buckley v. Valeo, 424 U.S., at 64-65, 96 S.Ct., at
656; NAACP v. Alabama, 357 U.S. 449, 460-461, 78 S.Ct. 1163, 1170-1171, 2
L.Ed.2d 1488 (1958). "This type of scrutiny is necessary even if any deterrent
effect on the exercise of First Amendment rights arises, not through direct
government action, but indirectly as an unintended but inevitable result of the
government's conduct . . . ." Buckley v. Valeo, supra, 424 U.S., at 65, 96 S.Ct.,
at 656. Thus encroachment "cannot be justified upon a mere showing of a
legitimate state interest." Kusper v. Pontikes, 414 U.S., at 58, 94 S.Ct., at 308.
The interest advanced must be paramount, one of vital importance, and the
burden is on the government to show the existence of such an interest. Buckley
v. Valeo, supra, 424 U.S., at 94, 96 S.Ct., at 670; Williams v. Rhodes, 393 U.S.,
at 31-33, 89 S.Ct., at 10-11; NAACP v. Button, 371 U.S. 415, 438, 444, 83
S.Ct. 328, 340, 343, 9 L.Ed.2d 405 (1963); Bates v. Little Rock, 361 U.S. 516,
524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, supra, 357
U.S., at 464-466, 78 S.Ct., at 1172-1173; Thomas v. Collins, 323 U.S. 516, 530,
65 S.Ct. 315, 322, 89 L.Ed. 430 (1945). In the instant case, care must be taken
not to confuse the interest of partisan organizations with governmental interests.
Only the latter will suffice. Moreover, it is not enough that the means chosen in
furtherance of the interest be rationally related to that end. Sherbert v. Verner,
supra, 374 U.S. at 406, 83 S.Ct. at 1795. The gain to the subordinating interest
provided by the means must outweigh the incurred loss of protected rights, see
United Public Workers v. Mitchell, 330 U.S., at 96, 67 S.Ct., at 567,16 and the
government must "emplo(y) means closely drawn to avoid unnecessary
abridgnt . . . ." Buckley v. Valeo, supra, 424 U.S., at 25, 96 S.Ct., at 638. "(A)
State may not choose means that unnecessarily restrict constitutionally
protected liberty. 'Precision of regulation must be the touchstone in an area so

closely touching our most precious freedoms.' If the State has open to it a less
drastic way of satisfying its legitimate interests, it may not choose a legislative
scheme that broadly stifles the exercise of fundamental personal liberties."
Kusper v. Pontikes, supra, 414 U.S., at 59, 94 S.Ct., at 308 (citations omitted).
See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967);
Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In short,
if conditioning the retention of public employment on the employee's support
of the in-party is to survive constitutional challenge, it must further some vital
government end by a means that is least restrictive of freedom of belief and
association in achieving that end, and the benefit gained must outweigh the loss
of constitutionally protected rights.17
32

One interest which has been offered in justification of patronage is the need to
insure effective government and the efficiency of public employees. It is argued
that employees of political persuasions not the same as that of the party in
control of public office will not have the incentive to work effectively and may
even be motivated to subvert the incumbent administration's efforts to govern
effectively. We are not persuaded. The inefficiency resulting from the
wholesale replacement of large numbers of public employees every time
political office changes hands belies this justification. And the prospect of
dismissal after an election in which the incumbent party has lost is only a
disincentive to good work.18 Further, it is not clear that dismissal in order to
make room for a patronage appointment will result in replacement by a person
more qualified to do the job since appointment often occurs in exchange for the
delivery of votes, or otheparty service, not job capability. More fundamentally,
however, the argument does not succeed because it is doubtful that the mere
difference of political persuasion motivates poor performance; nor do we think
it legitimately may be used as a basis for imputing such behavior. The Court
has consistently recognized that mere political association is an inadequate
basis for imputing disposition to ill-willed conduct. See Keyishian v. Board of
Regents, 385 U.S., at 606-608, 87 S.Ct., at 685-686; Elfbrandt v. Russell, 384
U.S. 11, 19, 86 S.Ct. 1238, 1242, 16 L.Ed.2d 321 (1966); Wieman v.
Updegraff, 344 U.S., at 190-191, 73 S.Ct., at 218. 19 Though those cases
involved affiliation with the Communist Party, we do not "consider these
(respondents') interest in freely associating with members of the (Republican)
Party less worthy of protection than (other) employees' interest in associating
with Communists or former Communists." Illinois State Employees Union v.
Lewis, 473 F.2d, at 570. At all events, less drastic means for insuring
government effectiveness and employee efficiency are available to the State.
Specifically, employees may always be discharged for good cause, such as
insubordination or poor job performance, when those bases in fact exist.

33

Even if the first argument that patronage serves effectiveness and efficiency be
rejected, it still may be argued that patronage serves those interests by giving
the employees of an incumbent party the incentive to perform well in order to
insure their party's incumbency and thereby their jobs. Patronage, according to
the argument, thus makes employees highly accountable to the public. But the
ability of officials more directly accountable to the electorate to discharge
employees for cause and the availability of merit systems, growth in the use of
which has been quite significant, convince us that means less intrusive than
patronage still exist for achieving accountability in the public work force and,
thereby, effective and efficient government. The greater effectiveness of
patronage over these less drastic means, if any, is at best marginal, a gain
outweighed by the absence of intrusion on protected interests under the
alternatives.

34

The lack of any justification for patronage dismissals as a means of furthering

government effectiveness and efficiency distinguishes this case from CSC v.
Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), and
United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754
(1949). In both of those cases, legislative restraints on political management
and campaigning by public employees were upheld despite their encroachment
on First Amendment rights because, inter alia, they did serve in a necessary
manner to foster and protect efficient and effective government.20 Interestingly,
the activities that were restrained by the legislation involved in those cases e
characteristic of patronage practices. As the Court observed in Mitchell, "The
conviction that an actively partisan governmental personnel threatens good
administration has deepened since (1882). Congress recognizes danger to the
service in that political rather than official effort may earn advancement and to
the public in that governmental favor may be channeled through political
connections." 330 U.S. at 97-98, 67 S.Ct. at 568.

35

A second interest advanced in support of patronage is the need for political

loyalty of employees, not to the end that effectiveness and efficiency be insured,
but to the end that representative government not be undercut by tactics
obstructing the implementation of policies of the new administration, policies
presumably sanctioned by the electorate. The justification is not without force,
but is nevertheless inadequate to validate patronage wholesale. Limiting
patronage dismissals to policymaking positions is sufficient to achieve this
governmental end. Nonpolicymaking individuals usually have only limited
responsibility and are therefore not in a position to thwart the goals of the inparty.

36

No clear line can be drawn between policymaking and nonpolicymaking

36

No clear line can be drawn between policymaking and nonpolicymaking

positions. While nonpolicymaking individuals usually have limited
responsibility, that is not to say that one with a number of responsibilities is
necessarily in a policymaking position. The nature of the responsibilities is
critical. Employee supervisors, for example, may have many responsibilities,
but those responsibilities may have only limited and well-defined objectives.
An employee with responsibilities that are not well defined or are of broad
scope more likely functions in a policymaking position. In determining whether
an employee occupies a policymaking position, consideration ould also be
given to whether the employee acts as an adviser or formulates plans for the
implementation of broad goals. Thus, the political loyalty "justification is a
matter of proof, or at least argument, directed at particular kinds of jobs."
Illinois State Employees Union v. Lewis, 473 F.2d, at 574. Since, as we have
noted, it is the government's burden to demonstrate an overriding interest in
order to validate an encroachment on protected interests, the burden of
establishing this justification as to any particular respondent will rest on the
petitioners on remand, cases of doubt being resolved in favor of the particular
respondent.

37

It is argued that a third interest supporting patronage dismissals is the

preservation of the democratic process. According to petitioners, " 'we have
contrived no system for the support of party that does not place considerable
reliance on patronage. The party organization makes a democratic government
work and charges a price for its services.' "21 The argument is thus premised on
the centrality of partisan politics to the democratic process.

38

Preservation of the democratic process is certainly an interest protection of

which may in some instances justify limitations on First Amendment freedoms.
See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); CSC v.
Letter Carriers, supra; Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d
24 (1968); United Public Workers v. Mitchell, supra. But however important
preservation of the two-party system or any system involving a fixed number of
parties may or may not be, 22 Williams v. Rhodes, supra, 393 U.S. at 32, 89
S.Ct. at 11, we are not persuaded that the elimination of patronage practice or,
as is specifically involved here, the interdiction of patronage dismissals, will
bring about the demise of party politics. Political parties existed in the absence
of active patronage practice prior to the administration of Andrew Jackson, and
they have survived substantial reduction in their patronage power through the
establishment of merit systems.23

39

Patronage dismissals thus are not the least restrictive alternative to achieving
the contribution they may make to the democratic process.24 The process
functions as well without the practice, perhaps even better, for patronage

dismissals clearly also retard that process. Patronage can result in the
entrenchment of one or a few parties to the exclusion of others. And most
indisputably, as we recognized at the outset, patronage is a very effective
impediment to the associational and speech freedoms which are essential to a
meaningful system of democratic government. Thus, if patronage contributes at
all to the elective process, that contribution is diminished by the practice's
impairment of the same. Indeed, unlike the gain to representative government
provided by the Hatch Act in CSC V. Letter Carriers, supra, and United Public
Workers v. Mitchell, supra, the gain to representative government provided by
the practice of patronage, if any, would be insufficient to justify its sacrifice of
First Amendment rights.25
40

To be sure, Letter Carriers and Mitchell upheld Hatch Act restraints sacrificing
political campaigning and management, activities themselves protected by the
First Amendment. But in those cases it was the Court's judgment that
congressional subordination of those activities was permissible to safeguard the
core interests of individual belief and association.26 Subordination of some First
Amendment activity was permissible to protect other such activity. Today, we
hold that subordination of other First Amendment activity, that is, patronage
dismissals, not only is permissible, but also is mandated by the First
Amendment. And since patronage dismissals fall within the category of
political campaigning and management, this conclusion irresistibly flows from
Mitchell and Letter Carriers. For if the First Amendment did not place
individual belief and association above political campaigning and management,
at least in the setting of public employment, the restraints on those latter
activities could not have been judged permissible in Mitchell and Letter
Carriers. 27

41

It is apparent that at bottom we are required to engage in the resolution of

conflicting interests under the First Amendment. The constitutional
adjudication called for by this task is well within our province.28 The
illuminating source to which we turn in performing the task is the system of
government the First Amendment was intended protect, a democratic system
whose proper functioning is indispensably dependent on the unfettered
judgment of each citizen on matters of political concern. Our decision in
obedience to the guidance of that source does not outlaw political parties or
political campaigning and management. Parties are free to exist and their
concomitant activities are free to continue. We require only that the rights of
every citizen to believe as he will and to act and associate according to his
beliefs be free to continue as well.

42

In summary, patronage dismissals severely restrict political belief and

association. Though there is a vital need for government efficiency and

effectiveness, such dismissals are on balance not the least restrictive means for
fostering that end. There is also a need to insure that policies which the
electorate has sanctioned are effectively implemented. That interest can be fully
satisfied by limiting patronage dismissals to policymaking positions. Finally,
patronage dismissals cannot be justified by their contribution to the proper
functioning of our democratic process through their assistance to partisan
politics since political parties are nurtured by other, less intrusive and equally
effective methods. More fundamentally, however, any contribution of
patronage dismissals to the democratic process does not suffice to override their
severe encroachment on First Amendment freedoms. We hold, therefore, that
the practice of patronage dismissals is unconstitutional under the First and
Fourteenth Amendments, and that respondents thus stated a valid claim for
relief.
VII
43

There remains the question whether the issuance of a preliminary injunction

was properly directed by the Court of Appeals. The District Court predicated its
denial of respondents' motion for a preliminary injunction on its finding that the
allegations in their complaints and affidavits did not constitute a sufficient
showing of irreparable injury and that respondents had an adequate remedy at
law. The Court of Appeals held, however: "Inasmuch as this case involves First
Amendment rights of association which must be carefully guarded against
infringement by public office holders, we judge that injunctive relief is clearly
appropriate in these cases." 509 F.2d, at 1136. We agree.

44

At the time a preliminary injunction was sought in the District Court, one of the
respondents was only threatened with discharge. In addition, many of the
members of the class respondents were seeking to have certified prior to the
dismissal of their complaint were threatened with discharge or had agreed to
provide support for the Democratic Party in order to avoid discharge. It is clear
therefore that First Amendment interests were either threatened or in fact being
impaired at the time relief was sought. The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.
See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29
L.Ed.2d 822 (1971).29 Since such injury was both threatened and occurring at
the time of respondents' motion and since respondents sufficiently demonstrated
a probability of success on the merits, the Court of Appeals might properly have
held that the District Court abused its discretion in denying preliminary
injunctive relief. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct.
631, 637, 9 L.Ed.2d 584 (1963).

The judgment of the Court of Appeals is

45

Affirmed.

46

Mr. Justice STEVENS did not participate in the consideration or decision of

this case.

47

Mr. Justice STEWART, with whom Mr. Justice BLACKMUN joins,

concurring in the judgment.

48

Although I cannot join the plurality's wide-ranging opinion, I can and do concur
in its judgment.

49

This case does not require us to consider the broad contours of the so-called
patronage system, with all its variations and permutations. In particular, it does
not require us to consider the constitutional validity of a system that confines
the hiring of some governmental employees to those of a particular political
party, and I would intimate no views whatever on that question.

50

The single substantive question involved in this case is whether a

nonpolicymaking, nonconfidential government employee can be discharged or
threatened with discharge from a job that he is satisfactorily performing upon
the sole ground of his political beliefs. I agree with the plurality that he cannot.
See Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S.Ct. 2694, 2697-2698, 33
L.Ed.2d 570.

51

Mr. Chief Justice BURGER, dissenting.

52

The Court's decision today represents a significant intrusion into the area of
legislative and policy concerns the sort of intrusion Mr. Justice BRENNAN has
recently protested in other contexts. I therefore join Mr. Justice POWELL's
dissenting opinion, and add a few words simply to emphasize an aspect that
seems particularly important to me.

53

The Illinois Legislature has pointedly decided that roughly half of the Sheriff's
staff shall be made up of tenured career personnel and the balance left
exclusively to the choice of the elected head of the department. The Court
strains the rational bounds of First Amendment doctrine and runs counter to
longstanding practices that are part of the fabric of our democratic system to
hold that the Constitution Commands something it has not been thought to

require for 185 years. For all that time our system has wisely left these matters
to the States and, on the federal level, to the Congress. The Court's action is a
classic example of trivializing constitutional adjudication a function of the
highest importance in our system.

54

Only last week, in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct.
2465, 49 L.Ed.2d 245 (1976), we took steps to arrest the downgrading of States
to a role comparable to the departments of France, governed entirely out of the
national capital. Constant inroads on the powers of the States to manage their
own affairs cannot fail to complicate our system and centralize more power in
Washington. For the reasons Mr. Justice POWELL persuasively adduces, the
First Amendment neither requires nor justifies such inroads in this case. In
view, the issue is not so much whether the patronage system is "good" or "bad,"
as the plurality characterizes the problem, but whether the choice of its use in
the management of the very government of each State was not, in the words of
the Tenth Amendment, "reserved to the States . . . or to the people."

55

Congress long ago, as a matter of policy, opted for a federal career service with
a small number of purely political appointments in the executive branch, and
many governmental departments have a limited number of positions in which
the persons appointed have no tenure but serve at the pleasure of the cabinet
officer or agency chief, who in turn serves at the pleasure of the President. See,
E. g., Leonard v. Douglas, 116 U.S.App.D.C. 136, 321 F.2d 749 (1963). The
considerations leading to these legislative conclusions are for me not open to
judicial scrutiny under the guise of a First Amendment claim, any more than is
the right of a newly elected Representative or Senator, for example, to have a
staff made up of persons who share his political philosophy and affiliation and
are loyal to him. It seems to me that the Illinois Legislature's choice is entitled
to no less deference.

56

Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice
REHNQUIST join, dissenting.

57

The Court holds unconstitutional a practice as old as the Republic, a practice

which has contributed significantly to the democratization of American politics.
This decision is urged on us in the name of First Amendment rights, but in my
view the judgment neither is constitutionally required nor serves the interest of
a representative democracy. It also may well disserve rather than promote core
values of the First Amendment. I therefore dissent.

58

* The Cook County Sheriff's Office employs approximately 3,000 people.

Roughly half of these employees are "merit" employees given various

protections from discharge. The other half of the employees have no such
protection. Customary Illinois political practice has allowed such "non-merit"
positions to be awarded on "patronage" grounds. This tradition has entitled
newly elected officeholders to replace incumbent nonmerit employees with
patronage appointments.
59

Petitioner Richard Elrod, a Democrat, was elected Sheriff of Cook County in

1970, succeeding a Republican. Consistently with Illinois practice, he
dismissed a number of incumbent employees because they lacked Democratic
affiliation and were unable to secure Democratic sponsorship. The named
respondents, several discharged employees and another employee threatened
with discharge, are all Republicans who concededly were hired by Elrod's
predecessor because of their political affiliations.

II
60

As the plurality opinion recognizes, patronage practices of the sort under

consideration here have a long history in America.1 Although an extensive
recounting of that history is not necessary, I think it important to survey it more
fully than does the plurality opinion.2 The observation that patronage
iemployment received its primary popularization and legitimation during
Jackson's Presidency, Ante, at 353, understates the historical antecedents of the
practice, which stretch back to Washington's presidency.

61

Partisan politics, as we now know them, did not assume a prominent role in
national politics immediately after the adoption of the Constitution.
Nonetheless, Washington tended to confine appointments even of customs
officials and postmasters to Federalists, as opposed to anti-Federalists. As the
role of parties expanded, partisan considerations quickly influenced
employment decisions. John Adams removed some Republicans from minor
posts, and Jefferson, the first President to succeed a President of an opposing
party, made significant patronage use of the appointment and removal powers.
The administrations of Madison, Monroe, and John Quincy Adams provided no
occasion for conspicuous patronage practice in employment, as each succeeded
a copartisan. Jackson, of course, used patronage extensively when he became
the first President since Jefferson to succeed an antagonistic administration.

62

It thus appears that patronage employment practices emerged on the national

level at an early date, and that they were conspicuous during Jackson's
Presidency largely because of their necessary dormancy during the long
succession of Republican Presidents. During that period, however, patronage in

hiring was practiced widely in the States, especially in New York and
Pennsylvania. This afforded a theoretical and popular legitimacy to patronage,
helping to lay the groundwork for acceptance of Jackson's actions on the
national level.
63

It irecognized that patronage in employment played a significant role in

democratizing American politics. See, E. g., C. Fish, The Civil Service and the
Patronage 156-157 (1905); Sorauf, Patronage and Party, 3 Midwest J. Pol.Sci.
115-116 (1959). Before patronage practices developed fully, an "aristocratic"
class dominated political affairs, a tendency that persisted in areas where
patronage did not become prevalent. C. Fish, Supra, at 157. Patronage practices
broadened the base of political participation by providing incentives to take part
in the process, thereby increasing the volume of political discourse in society.
Patronage also strengthened parties, and hence encouraged the development of
institutional responsibility to the electorate on a permanent basis. Parties
became "instrument(s) through which discipline and responsibility may be
achieved within the Leviathan." Sorauf, Supra, at 115.

64

In many situations patronage employment practices also entailed costs to

government efficiency. These costs led eventually to reforms placing most
federal and state civil service employment on a nonpatronage basis. But the
course of such reform is of limited relevance to the task of constitutional
adjudication in this case. It is pertinent to note, however, that a perceived
impingement on employees' political beliefs by the patronage system was not a
significant impetus to such reform. Most advocates of reform were concerned
primarily with the corruption and inefficiency that patronage was thought to
induce in civil service and the power that patronage practices were thought to
give the "professional" politicians who relied on them. D. Rosenbloom, Federal
Service and the Constitution 70-74 (1971). Moreover, it generally was thought
that elimination of these evils required the imposition both of a merit system
and of restrictions on First Amendment activities by government employees.
Id., at 76-77, 82-86; see, e. g., CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct.
2880, 37 L.Ed.2d 796 (1973).

III
65

It might well be possible to dispose of this case on the ground that it implicates
no First Amendment right of the respondents, and therefore that they have
failed to state a cause of action. They are employees seeking to avoid discharge
not citizens desiring an opportunity to be hired by the county without regard to
their political affiliation or loyalty. Respondents' complaint acknowledges the
longstanding existence of the patronage system they now challenge:

66

"For many years past and continuing to this time it has been the practice of the
elected Sheriff of Cook County, when he assumes office from a Sheriff of a
different political party, to replace all or substantially all of the non-civil service
employees of the Sheriff's office who did not (a) Pledge their political
allegiance to the political party of the incoming Sheriff; (and/or meet other
specified political requirements) . . . ." App. p. 3.

67

We thus have complaining employees who apparently accepted patronage jobs

knowingly and willingly, while fully familiar with the "tenure" practices long
prevailing in the Sheriff's Office. Such employees have Benefited from their
political beliefs and activities; they have not been penalized for them. In these
circumstances, I am inclined to agree with the holding of the Supreme Court of
Pennsylvania in American Federation of State Employees v. Shapp, 443 Pa.
527, 280 A.2d 375 (1971), that beneficiaries of a patronage system may not be
heard to challenge it when it comes their turn to be replaced. See also Nunnery
v. Barber, 503 F.2d 1349 (CA4 1974).

68

The plurality opinion virtually ignores this issue in an apparent rush to

constitutional adjudication. It also may be that the pleadings present an
inadequate record on which to decide this matter.3 In any event, I am forced to
turn to the question addressed by the plurality, even though a full development
of the evidence or more carefully drawn pleadings may have justified a
disposition on the ground that these respondents cannot challenge the patronage
hiring practices.4

IV
69

The question is whether it is consistent with the First and Fourteenth

Amendments for a State to offer some employment conditioned, explicitly or
implicitly, on partisan political affiliation and on the political fortunes of the
incumbent officeholder. This is to be determined, as the plurality opinion
agrees, by whether patronage hiring practices sufficiently advance important
state interests to justify the consequent burdening of First Amendment interests.
Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637-638, 46 L.Ed.2d 659
(1976); Ante, at 360-363. It is difficult to disagree with the view, as an abstract
proposition, that government employment ordinarily should not be conditioned
upon one's political beliefs or activities. But we deal here with a highly
practical and rather fundamental element of our political system, not the
theoretical abstractions of a political science seminar. In concluding that
patronage hiring practices are unconstitutional, the plurality seriously
underestimates the strength of the government interest especially at the local
level in allowing some patronage hiring practices, and it exaggerates the

perceived burden on First Amendment rights.5

70

* As indicated above, patronage hiring practices have contributed to American

democracy by stimulating political activity and by strengthening parties,
thereby helping to make government accountable.6 It cannot be questioned
seriously that these contributions promote important state interests. Earlier this
Term we said of the government interest in encouraging political debate:

71

"(Public financing of Presidental campaigns) is . . . (an effort) to use public

money to facilitate and enlarge public discussion and participation in the
electoral process, goals vital to a self-governing people." Buckley v. Valeo,
supra, at 92-93, 96 S.Ct. at 670 (footnote omitted).

72

"Legislation to enhance these First Amendment values is the rule, not the
exception. Our statute books are replete with laws providing financial
assistance to the exercise of free speech . . . ." Id., at 93 n. 127, 96 S.Ct., at 670.

73

We ao have recognized the strong government interests in encouraging stable

political parties and avoiding excessive political fragmentation. Through the
medium of established parties the "people . . . are presented with
understandable choices and the winner in the general election with sufficient
support to govern effectively," Storer v. Brown, 415 U.S. 724, 735, 94 S.Ct.
1274, 1281, 39 L.Ed.2d 714 (1974), while "splintered parties and unrestrained
factionalism (might) do significant damage to the fabric of government." Id.,
415 U.S. at 736, 94 S.Ct. at 1282. See Buckley v. Valeo, supra, 424 U.S. at 98,
101, 96 S.Ct. at .

74

Without analysis, however, the plurality opinion disparages the contribution of

patronage hiring practices in advancing these state interests. It merely asserts
that such practices cause the "free functioning of the electoral process (to
suffer)," Ante, at 356, and that "we are not persuaded that the elimination of . . .
patronage dismissals, will bring about the demise of party politics." Ante, at
369. One cannot avoid the impression, however, that even a threatened demise
of parties would not trouble the plurality. In my view, this thinking reflects a
disturbing insensitivity to the political realities relevant to the disposition of this
case. 7

75

The complaining parties are or were employees of the Sheriff. In many

communities, the sheriff's duties are as routine as process serving, and his
election attracts little or no general public interest. In the States, and especially
in the thousands of local communities, there are large numbers of elective

offices, and many are as relatively obscure as that of the local sheriff or
constable. Despite the importance of elective offices to the ongoing work of
local governments, election campaigns for lesser offices in particular usually
attract little attention from the media, with consequent disinterest and absence
of intelligent participation on the part of the public. Unless the candidates for
these offices are able to dispense the traditional patronage that has accrued to
the offices, they also are unlikely to attract donations of time or money from
voluntary groups. In short, the resource pools that fuel the intensity of political
interest and debate in "important" elections frequently "could care less" about
who fills the offices deemed to be relatively unimportant. Long experience
teaches that at this local level traditional patronage practices contribute
significantly to the democratic process. The candidates for these offices derive
their support at the precinct level, and their modest funding for publicity, from
cadres of friends and political associates who hope to benefit if their "man" is
elected.8 The activities of the latter are often the principal source of political
information for the voting public. The "robust" political discourse that the
plurality opinion properly emphasizes is furthered not restricted by the timehonored system.
76

Patronage hiring practices also enable party organizations to persist and

function at the local level. Such organizations become visible to the electorate
at large only at election time, but the dull periods between elections require
ongoing activities: precinct organizations must be maintained; new voters
registered; and minor political "chores" performed for citizens who otherwise
may have no practical means of access to officeholders. In some communities,
party organizations and clubs also render helpful social services.

77

It is naive to think that these types of political activities are motivated at these
levels by some academic interest in "democracy" or other public service
impulse. For the most part, as every politician knows, the hope of some reward
generates a major portion of the local political activity supporting parties. It is
difficult to overestimate the contributions to our system by the major political
parties, fortunately limited in number compared to the fractionalization that has
made the continued existence of democratic government doubtful in some other
countries. Parties generally are stable, high-profile, and permanent institutions.
When the names on a long ballot are meaningless to the average voter, party
affiliation affords a guidepost by which voters may rationalize a myriad of
political choices. Cf. Buckley v. Valeo, 424 U.S., at 66-68, 96 S.Ct., at 657658. Voters can and do hold parties to long-term accountability, and it is not too
much to say that, in their absence, responsive and responsible performance in
low-profile offices, particularly, is difficult to maintain.

78

It is against decades of experience to the contrary, then, that the plurality

opinion concludes that patronage hiring practices interfere with the "free
functioning of the electoral process." Ante, at 356. This ad hoc judicial
judgment runs counter to the judgments of the representatives of the people in
state and local governments, representatives who have chosen, in most
instances, to retain some patronage practices in combination with a meritoriented civil service. One would think that elected representatives of the
people are better equipped than we to weigh the need for some continuation of
patronage practices in light of the interests above identified,9 and particularly in
view of local conditions.10 See CSC v. Letter Carriers, 413 U.S., at 564, 93
S.Ct., at 2889-2890; United Public Workers v. Mitchell, 330 U.S. 75, 99, 67
S.Ct. 556, 569, 91 L.Ed. 754 (1947). Against this background, the assertion in
the plurality opinion that "(p)atronage dismissals . . . are not the least restrictive
alternative to achieving (any) contribution they may make to the democratic
process" is unconvincing, especially since no alternative to some continuation
of patronage practices is suggested. Ante, at 369 (footnote omitted).

B
79

I thus conclude that patronage hiring practices sufficiently serve important state
interests, including some interests sought to be advanced by the First
Amendment, to justify a tolerable intrusion on the First Amendment interests of
employees or potential employees.

80

The plurality opinion asserts that patronage hiring practices contravene the
fundamental principle that " 'no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opinion . . . .' "
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63
S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943). But such practices simply cannot be so
construed. This case differs materially from previous cases involving the
imposition of political conditions on employment, see, E. g., Garner v. Los
Angeles Board, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951), cases where
there was an attempt to exclude "a minority group . . . odious to the majority."
Id., at 725, 71 S.Ct., at 915 (Frankfurter, J., concurring in part and dissenting in
part). In that context there was a danger that governmental action was directed
toward the elimination of political beliefs by penalizing adherents to them. But
patronage hiring practices have been consistent historically with vigorous
ideological competition in the political "marketplace." And even after one
becomes a beneficiary, the system leaves significant room for individual
political expression. Employees, regardless of affiliation, may vote freely11 and
express themselves on some political issues. See Perry v. Sindermann, 408 U.S.
593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Education,

391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The principal intrusion of
patronage hiring practices on First Amendment interests thus arises from the
coercion on associational choices that may be created by one's desire initially to
obtain employment. This intrusion, while not insignificant, must be measured in
light of the limited role of patronage hiring in most government employment.
The pressure to abandon one's beliefs and associations to obtain government
employment especially employment of such uncertain duration does not seem to
me to assume impermissible proportions in light of the interests to be served.
V
81

On the assumption that we must reach the constitutional issue at the behest of
respondents, I would hold that a state or local government may elect to
condition employment on the political affiliation of a prospective employee and
on the political fortunes of the hiring incumbent. History and long-prevailing
practice across the country support the view that patronage hiring practices
make a sufficiently substantial contribution to the practical functioning of our
democratic system to support their relatively modest intrusion on First
Amendment interests. The judgment today unnecessarily constitutionalizes
another element of American life an element certainly not without its faults but
one which generations have accepted on balance as having merit.12 We should
have heeded, instead, the admonition of Mr. Justice Holmes that "(i)f a thing
has been practised for two hundred years by common consent, it will need a
strong case for the Fourteenth Amendment to affect it . . ." Jackman v.
Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 9, 67 L.Ed. 107 (1922); see Walz
v. Tax Comm'n, 397 U.S. 664, 678, 90 S.Ct. 1409, 1416, 25 L.Ed.2d 697
(1970).

For purposes of our review, all of the well-pleaded allegations of respondents'

complaint and uncontroverted affidavits filed in support of the motion for a
preliminary injunction are taken as true.

M. Tolchin & S. Tolchin, To the Victor 5-6 (1971).

Id., at 323.

Id., at 323-326.

See C. Fish, The Civil Service and the Patronage 87, 209-210 (1904); D.
Rosenbloom, Federal Service and the Constitution 238-240 (1971).

C. Friedrich & Z. Brzezinski, Totalitarian Dictatorship and Autocracy 183-188

(rev. ed. 1965).

7

Act of Jan. 16, 1883, c. 27, 2(2) Fifth, Sixth, 22 Stat. 404.

See Broadrick v. Oklahoma, 413 U.S. 601, 604-605, n. 2, 93 S.Ct. 2908, 2912,
37 L.Ed.2d 830 (1973). Factors contributing to the declining use of patronage
have not been limited to the proliferation of merit systems. New methods of
political financing, the greater necessity of job expertise in public employment,
growing issue orientation in the elective process, and new incentives for
political campaigners have also contributed. Sorauf, The Silent Revolution In
Patronage, 20 Pub.Admin.Rev. 28, 34 (1960).

For comprehensive commentary on the constitutionality of the practice of

patronage dismissals, see Schoen, Politics, Patronage, and the Constitution, 3
Ind.Legal Forum 35 (1969); Comment, Patronage Dismissals: Constitutional
Limits and Political Justification, 41 U.Chi.L.Rev. 297 (1974).

10

"It is important to note that while it is the Fourteenth Amendment which bears
directly upon the State it is the more specific limiting principles of the First
Amendment that finally govern this case." Board of Education v. Barnette, 319
U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943).

11

Protection of First Amendment interests has not been limited to invalidation of

conditions on government employment requiring allegiance to a particular
political party. This Court's decisions have prohibited conditions on public
benefits, in the form of jobs or otherwise, which dampen the exercise generally
of First Amendment rights, however slight the inducement to the individual to
forsake those rights.
In Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961),
decided the same day as Cafeteria Workers, the Court squarely held that a
citizen could not be refused a public office for failure to declare his belief in
God. More broadly, the Court has held impermissible under the First
Amendment the dismissal of a high school teacher for openly criticizing the
Board of Education on its allocation of school funds. Pickering v. Board of
Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). And in
Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963),
unemployment compensation, rather than public employment, was the
government benefit which could not be withheld on the condition that a person
accept Saturday employment where such employment was contrary to religious
faith. Similarly, the First Amendment prohibits limiting the grant of a tax
exemption to only those who affirm their loyalty to the State granting the
exemption. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460
(1958).

12

Thereafter, United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508
(1967), similarly held that mere membership in the Communist Party could not
bar a person from employment in private defense establishments important to
national security.

13

The increasingly pervasive nature of public employment provides officials with

substantial power through conditioning jobs on partisan support, particularly in
this time of high unemployment. Since the government however, may not seek
to achieve an unlawful end either directly or indirectly, the inducement afforded
by placing conditions on a benefit need not be particularly great in order to find
that rights have been violated. Rights are infringed both where the government
fines a person a penny for being a Republican and where it withholds the grant
of a penny for the same reason.
Petitioners contend that even though the government may not provide that
public employees may retain their jobs only if they become affiliated with or
provide support for the in-party, respondents here have waived any objection to
such requirements. The difficulty with this argument is that it completely
swallows the rule. Since the qualification may not be constitutionally imposed
absent an appropriate justification, to accept the waiver argument is to say that
the government may do what it may not do. A finding of waiver in this case,
therefore, would be contrary to our view that a partisan job qualification
abridges the First Amendment.

14

Brief for Petitioners 12-13.

15

See also Board of Regents v. Roth, 408 U.S. 564, 571 n. 9, 92 S.Ct. 2701, 2706,
33 L.Ed.2d 548 (1972):
"In a leading case decided many years ago, the Court of Appeals for the
District of Columbia Circuit held that public employment in general was a
'privilege,' not a 'right,' and that procedural due process guarantees therefore
were inapplicable. Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46,
aff'd by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352.
The basis of this holding has been thoroughly undermined in the ensuing years.
For, as Mr. Justice Blackmun wrote for the Court only last year, 'this Court now
has rejected the concept that constitutional rights turn upon whether a
governmental benefit is characterized as a "right" or as a "privilege." ' Graham
v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534. See, e.
g., Morrissey v. Brewer, 408 U.S. (471) at 482, 92 S.Ct. (2593) at 2600 (33
L.Ed.2d 484); Bell v. Burson, (402 U.S. 535,) at 539, 91 S.Ct. (1586) at 1589
(29 L.Ed.2d 90); Goldberg v. Kelly, (397 U.S. 254,) at 262, 90 S.Ct. (1011) at
1017 (25 L.Ed.2d 287); Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct.

1322, 1329, 22 L.Ed.2d 600; Pickering v. Board of Education, 391 U.S. 563,
568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811; Sherbert v. Verner, 374 U.S. 398,
404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965."
16

"(T)his Court must balance the extent of the guarantees of freedom against a
congressional enactment to protect a democratic society against the supposed
evil of political partisanship by classified employees of government." United
Public Workers v. Mitchell, 330 U.S., at 96, 67 S.Ct., at 567.

17

The Court's decision in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673,
20 L.Ed.2d 672 (1968), does not support petitioners. O'Brien dealt with the
constitutionality of laws regulating the "nonspeech" elements of expressive
conduct. No such regulation is involved here, for it is association and belief per
se, not any particular form of conduct, which patronage seeks to control.
Moreover, while partisanship may involve activities such as registering with a
political organization, wearing a campaign button, or contributing to a
campaign fund, we cannot say these activities can be equated with such conduct
as destruction of a draft card which was involved in O'Brien. See Buckley v.
Valeo, 424 U.S. 1, 17, 96 S.Ct. 612, 634, 46 L.Ed.2d 659 (1976). Finally, to
paraphrase the Court's observations in Buckley : "Even if the categorization of
(partisan activity) as conduct were accepted, the limitations challenged here
would not meet the O'Brien test because the governmental interests advanced in
support of the (practice of patronage) involve 'suppressing communication.' "
Id., at 17, 96 S.Ct., at 634. For the end to be furthered by the practice involves
the compulsion of support for the incumbent political party. Indeed, unlike the
legislation tested in Buckley, the practice of patronage does "focus on the ideas
expressed by persons or groups subjected to (it) . . . ." Ibid. And, contrary to
O'Brien's proscription, under patronage "the alleged governmental interest in
regulating conduct arises in some measure because the communication
allegedly integral to the conduct is itself thought to be harmful." 391 U.S., at
382, 88 S.Ct., at 1682.

18

It does not appear that efficiency and effective government were the concerns
of elected officials in this case. Employees originally dismissed were reinstated
after obtaining sponsorship letters, a practice hardly promotive of efficiency if
the employee's work had been less than par or if the employee had previously
behaved in an insubordinate manner. App. 14. Complaints by one supervisor
that too many people were being discharged too fast, without adequately trained
replacements, were met with the response that the number of dismissals was to
be maintained because the job openings were needed for partisan appointments.
Id., at 15. One Republican employee of the Sheriff's Office was told that his
dismissal had nothing to do with the quality of his work, but that his position
was needed for a Democratic replacement. Id., at 22.

19

In this regard, petitioners' reliance on American Communications Assn. v.

Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), is misplaced. To be
sure, that decision upheld a section of the National Labor Relations Act
denying certain benefits of the Act to labor organizations which had not filed
with the National Labor Relations Board affidavits that their leaders were not
members of the Communist Party. The Court there deferred to a legislative
determination, that, with respect to labor relations, the Communist Party was
unlike other parties in its use of union leadership to bring about strikes and
other obstructions to commerce. The Court was careful to note in Douds,
however, that the precise holding in that case would not serve as a departure
point for inferences of ill conduct grounded merely on political association. Id.,
339 U.S. at 410, 70 S.Ct. at 689. Indeed, the Court in Douds also carefully
observed that political affiliations and beliefs "are circumstances ordinarily
irrelevant to permissible subjects of government action." Id., 339 U.S. at 391,
70 S.Ct. at 680.
Those caveats were well stated. With but three exceptions shortly after Douds,
Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952);
Garner v. Los Angeles Board, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317
(1951); and Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95
L.Ed. 745 (1951), the Court's decisions have consistently rejected all inferences
based merely on belief and association, and we do so today. See e. g.,
Keyishian v. Board of Regents, 385 U.S., at 606-608, 87 S.Ct., at 685-686;
Wieman v. Updegraff, 344 U.S., at 188-190, 73 S.Ct., at 217-218.

20

Legislative restraints on political management and campaigning were also

upheld in Letter Carriers and Mitchell because they served to protect individual
belief and association and, thereby, the political process. The distinction
between this case and those cases in that respect is treated infra, this page and at
368-371.

21

Brief for Petitioners, 43, quoting V. Key, Politics, Parties and Pressure Groups
369 (5th ed. 1964).

22

Partisan politics bears the imprimatur only of tradition, not the Constitution.
"It may be correct that the patronage system has been followed for 'almost two
hundred years' and therefore was in existence when the Constitution was
adopted. However, the notoriety of the practice in the administration of
Andrew Jackson in 1828 implies that it was not prevalent theretofore; we are
not aware of any discussion of the practice during the drafting of the
Constitution or the First Amendment. In any event, if the age of a pernicious
practice were a sufficient reason for its continued acceptance, the constitutional

attack on racial discrimination would, of course, have been doomed to failure."

Illinois State Employees Union v. Lewis, 473 F.2d 561, 568 n. 14 (CA7 1972).
23

Sorauf, The Silent Revolution in Patronage, 20 Pub.Admin.Rev. 28, 32-33

(1960); Sorauf, Patronage and Party, 3 Midwest J.Pol.Sci. 115, 118-120 (1959).

24

See n. 8, Supra.

25

The Court's decision earlier this term in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct.
612, 46 L.Ed.2d 659 (1976), is not contrary. It is true that in Buckley, as here,
the interest to be served was the democratic system, and accordingly in
Buckley, the infringement of some First Amendment rights was held to be
tolerable. In Buckley, however, unlike here, the disclosure and contribution
limitations on campaign financing, which were upheld, were essential to
eliminating the grave evil of improper influence in the political process. The
Court found that those provisions "constitute the Act's primary weapons against
the reality or appearance of improper influence stemming from the dependence
of candidates on large campaign contributions." Id., at 58, 96 S.Ct., at 653. The
Court further found that "(t)he contribution ceilings . . . serve the basic
governmental interest in safeguarding the integrity of the electoral process
without directly impinging upon the rights of individual citizens and candidates
to engage in political debate and discussion." Ibid. With respect to expenditure
limitations, however, which were not upheld, the Court found: "These
provisions place substantial and direct restrictions on the ability of candidates,
citizens, and associations to engage in protected political expression, restrictions
that the First Amendment cannot tolerate." Id., at 58-59, 96 S.Ct., at 653. The
restrictions imposed by patronage dismissals, limiting wholesale an individual's
political beliefs, expression, and association, while perhaps less direct, are
equally, if not more, substantial, and therefore also intolerable to the First
Amendment. Moreover, patronage dismissals involve the evil of influence,
whose very need for elimination justified the contribution and disclosure
provisions in Buckley.

26

"To declare that the present supposed evils of political activity are beyond the
power of Congress to redress would leave the nation impotent to deal with what
many sincere men believe is a material threat to the democratic system." United
Public Workers v. Mitchell, supra, 330 U.S., at 99, 67 S.Ct., at 569. "Congress
may reasonably desire to limit party activity of federal employees so as to avoid
a tendency toward a one-party system." Id., at 100, 67 S.Ct., at 569.

27

The judgment that the First Amendment interests in political campaigning and
management must, in the setting of public employment, give way to the First
Amendment interests in individual belief and association does not necessarily

extend to other contexts. Restraining political campaigning and management in

the area of public employment leaves it free to continue in other settings. The
consequence of no such restraint, however, is the complete restriction of
individual belief and association for each public employee affected.
28

Letter Carriers did observe: "Although Congress is free to strike a different

balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the
limitations on partisan political activities now contained in the Hatch Act." 413
U.S., at 564, 93 S.Ct., at 2890. Though Congress may be free not to impose
restraints on political campaigning and management in the public employment
sector, we are not similarly free to do so where those practices, protected as
they may be in other contexts, are found impermissibly to preempt equally, if
not more, fundamental constitutional rights.

29

The timeliness of political speech is particularly important. See Carroll v.

Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347, 352, 21 L.Ed.2d 325 (1968);
Wood v. Georgia, 370 U.S. 375, 391-392, 82 S.Ct. 1364, 1373-1374, 8 L.Ed.2d
569 (1962).
"(T)he purpose of the First Amendment includes the need . . . 'to protect parties
in the free publication of matters of public concern, to secure their right to a
free discussion of public events and public measures, and to enable every
citizen at any time to bring the government and any person in authority to the
bar of public opinion by any just criticism upon their conduct in the exercise of
the authority which the people have conferred upon them,' " Id., at 392, 82
S.Ct., at 1374 (quoting 2 T. Cooley, Constitutional Limitations 885 (8th ed.
1927)).

Substantially for the reasons stated in the plurality opinion, I agree that the
question presented here is a justiciable one. I note, however, that the ability to
formulate judicial standards is another factor to be considered in evaluating
justiciability. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
The difficulty of formulating standards might pose a bar to judicial review of
some patronage practices not before us.

The sources primarily relied upon for the statements in text are C. Fish, The
Civil Service and the Patronage (1905), and D. Rosenbloom, Federal Service
and the Constitution (1971).

On petitioners' motion to dismiss, the District Court had before it only the
complaint and the petitioners' conclusory motions to dismiss. Although one
reasonably may be confident that these employees willingly accepted this
employment as political patronage, with full knowledge that their continued

employment depended on the outcome of the next election, this may not be
entirely clear from the pleadings as viewed upon a motion to dismiss. The
District Court made no finding of fact in this respect, and its brief opinion does
not rely on this ground.
4

One may agree readily that different plaintiffs legitimately could assert First
Amendment interests. These would be individuals who desired to be hired for
state or local employment and who possessed all requisite qualifications except
the "right" political posture or sponsorship.

This case involves only employees. We thus face no allegations that patronage
practices exclude any voters or candidates from effective participation in the
political process by impermissibly disadvantaging them. Cf. Shakman v.
Democratic Organization of Cook County, 435 F.2d 267 (CA7 1970). Elrod
informs us that since 1955 two Democrats, two Republicans, and an
Independent have served as Sheriff. Reply Brief for Petitioners 11 n. 20a.

Some commentators have believed that patronage hiring practices promote

other social interests as well:
"Patronage is peculiarly important for minority groups, involving much more
than the mere spoils of office. Each first appointment given a member of any
underdog element is a boost in that element's struggle for social acceptance. It
means that another barrier to their advance has been lifted, another shut door
has swung open."
S. Lubell, The Future of American Politics 76-77 (1952).

As this case presents only the question whether a State constitutionally may
pursue patronage hiring practices, we do not consider whether such practices
would be justified if pursued by the Federal Government.

Former Senator Paul H. Douglas (D. Ill.) said of patronage hiring practices:
"In short, I am for civil service but not for having civil service dominate public
employment 100 percent. That would give us the bureaucracy of Germany and
France which I do not regard as ideal.
"But I would like to have you consider just how long most liberals would be
able to last in Congress if you stripped us of all patronage, as you desire. We
who try to defend the interests of the people, the consumers and the taxpayers
commonly face the powerful opposition of the special-interest groups which
will spend enormous sums of money to defeat us. . . . If we are to survive we
need some support rooted in gratitude for material favors which at the same

time do not injure the general public." Letter to New Republic, July 14, 1952, p.
2.
9

The plurality might be taken to concede some promotion of the democratic

process by patronage hiring practices but to conclude that in net effect such
practices will reduce political debate impermissibly by affecting some
employees or potential employees and thereby depriving society of the
"unfettered judgment of each citizen on matters of political concern." Ante, at
372. In the past the Court has upheld congressional actions designed to increase
the overall level of political discourse but affecting adversely the First
Amendment interests of some individuals. Buckley v. Valeo, supra, 424 U.S. 1,
64-68, 96 S.Ct. 612, 656-658, 46 L.Ed.2d 659 (1976) (disclosure requirements);
CSC v. Letter Carriers, 413 U.S. 548, 564-566, 93 S.Ct. 2880, 2889-2891, 37
L.Ed.2d 796 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392395, 89 S.Ct. 1794, 1807-1809, 23 L.Ed.2d 371 (1969). In Letter Carriers we
indicated specifically that the First Amendment freedoms of federal employees
could be limited in an effort to further the functioning of the democratic
process. I do not believe that local legislative judgments as to what will further
the democratic process in light of local conditions should receive less weight
than these congressional judgments. Surely that should be the case until we
have a record, if one could be created, showing the fears of the plurality to be
justified.

10

The judgment today is limited to nonpolicymaking positions. Ante, at 367-368.

A "policy-making" exception, however, will not allow substantial advancement
of the state interests undercut by the Court's holding, as it is doubtful that any
significant number of employees can be identified as policymakers in a sheriff's
office. States have chosen to provide for the election of many local officials
who have little or no genuine policymaking functions, see Supra, at 383-384,
and the subordinates of such officials are even less likely to have such
functions. It thus is predictable that the holding today will terminate almost
completely the contributions of patronage hiring practices to the democratic
process. The probability of this result is increased to the extent that the needs of
efficiency in local government require that policymaking positions be included
in a merit-oriented, nonpolitical civil service.

11

It appears that before the adoption of the Australian ballot, one's access to or
retention of a government job sometimes could depend on voting "correctly."
D. Rosenbloom, Supra, n. 2, at 61. Today this ultimate core of political
expression is beyond the reach of any coercive effects of the patronage system.

12

In concluding that the Constitution does not require the invalidation of state and
local patronage systems, I wish to make clear that approval of any particular

type of system or of the practice in any particular State, city, or community is

not implied. I believe that the prevailing practice is to establish a broad base of
merit-oriented civil service, but to leave some room for the operation of
traditional patronage. I must say that the "mix" in Cook County (where only
about half of the employees in the Sheriff's Office are within the merit system)
seems disproportionate. On the other hand, there are smaller communities E. g.,
where nonpartisan, council-manager forms of government exist in which the
merit system embraces the vast majority of public employees. Political
scientists and students of government differ, and their views also have varied
from time to time, as to the best means of structuring state and local government
employment in the public interest. Nor is the answer necessarily the same for
every community without regard to its size, form of government, or other local
conditions. My conviction, as indicated in the opinion above, is that we should
not foreclose local options in the name of a constitutional right perceived to be
applicable for the first time after nearly two centuries.