Tuesday, May 30, 2006

Look What Playing Nice Got Us

Democrats essentially sat quietly by and allowed the confirmation of Samuel Alito to the Supreme Court. He replaced Justice Sandra Day O'Connor, who was frequently the swing vote on important issues. It appears that Justice Alito will also play that role, but I think his vote in case pretty much lets us know which direction he will be swinging.

The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.

In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.

Critics predicted the impact of the case involving a Los Angeles County prosecutor would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.

Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for the majority. "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties," Kennedy said.

...Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.

"Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," Kennedy wrote.

...Justice David H. Souter's lengthy dissent sounded like it might have been the majority opinion if moderate Justice Sandra Day O'Connor was still on the court.

"Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy," he wrote.

Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos but on different grounds.
[Emphasis added]

So, now whistleblowers can kiss job security good-bye. All a supervisor has to do is establish that an employee, by revealing wrongdoing or misconduct, is hampering the efficiency of the avowed policy, even if that policy is wrongful.

I have a hunch our worst fears about the two new justices are going to be borne out.

[Note: the full text of the opinion in Garcetti v Ceballos can be found here]


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