427 U.S. 347 (1976)

ELROD, SHERIFF, ET AL.
v.
BURNS ET AL.

No. 74-1520.

Supreme Court of United States.

Argued April 19, 1976. Decided June 28, 1976. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

*349 Thomas A. Foran argued the cause for petitioners. With him on the briefs were Bernard Carey, Paul P. Biebel, Jr., Raymond F. Simon, and Robert E. Wiss.

John C. Tucker argued the cause for respondents. With him on the brief was David Goldberger.^[*]

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

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.

I

Respondents brought this suit in the United States District Court for the Northern District of Illinois *350 against petitioners, Richard J. Elrod, Richard J. Daley, the Democratic Organization of Cook County, and the Democratic 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 (1975). We granted certiorari. 423 U. S. 821. We affirm.^[1]

II

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 *351 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.

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 Sheriff's 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

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.

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 (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., at 210. That matters related to a State's, or even the Federal Government's, elective process are implicated by *352 this Court's resolution of a question is not sufficient to justify our withholding decision of the question. In particular, in this case, we are 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., at 211. See Powell v. McCormack, 395 U. S. 486, 518-549 (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 (1968).

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 (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 *353 is in proper keeping with our primary responsibility of interpreting that document. It is to such a determination that we now turn.

IV

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.

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 *354 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. Letter Carriers, 413 U. S. 548, 564 (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."

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 (1954), with *355 Plessy v. Ferguson, 163 U. S. 537 (1896). Rather, inquiry must commence with identification of the constitutional limitations implicated by a challenged governmental practice.^[9]

V

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 out-party 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 (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 *356 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.

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.

Our concern with the impact of patronage on political belief 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 (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., at 642. And, though *357 freedom of belief is central, "[t]he First Amendment protects political association as well as political expression." Buckley v. Valeo, supra, at 15. "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; Bates v. Little Rock, 361 U. S. 516, 522-523; NAACP v. Alabama, 357 U. S. 449, 460-461. 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 (1973).

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 (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. 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.

The Court recognized in United Public Workers v. Mitchell, 330 U. S. 75, 100 (1947), that "Congress may not `enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office . . . .' " This *358 principle was reaffirmed in Wieman v. Updegraff, 344 U. S. 183 (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 (1961), the Court recognized again that the government could not deny employment because of previous membership in a particular party.^[11]

Particularly pertinent to the constitutionality of the practice of patronage dismissals are Keyishian v. Board of Regents, 385 U. S. 589 (1967), and Perry v. Sindermann, 408 U. S. 593 (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 *359 an adequate ground for denying public employment.^[12] In Perry, the Court broadly rejected the validity 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. Such interference with constitutional rights is impermissible." 408 U. S., at 597.

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 *360 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

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 (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 *361 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. Perry and Keyishian properly recognize one 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. "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 (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 (1973) (quoting Graham v. Richardson, 403 U. S. 365, 374 (1971)).^[15]

*362 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; NAACP v. Alabama, 357 U. S. 449, 460-461 (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, at 65. Thus encroachment "cannot be justified upon a mere showing of a legitimate state interest." Kusper v. Pontikes, 414 U. S., at 58. 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, at 94; Williams v. Rhodes, 393 U. S., at 31-33; NAACP v. Button, 371 U. S. 415, 438, 444 (1963); Bates v. Little Rock, 361 U. S. 516, 524 (1960); NAACP v. Alabama, supra, at 464-466; Thomas v. Collins, 323 U. S. 516, 530 (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, at 406. 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,^[16] and the government must "emplo[y] means *363 closely drawn to avoid unnecessary abridgment . . . ." Buckley v. Valeo, supra, at 25. "[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, at 59 (citations omitted). See United States v. Robel, 389 U. S. 258 (1967); Shelton v. Tucker, 364 U. S. 479 (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]

*364 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 *365 by a person more qualified to do the job since appointment often occurs in exchange for the delivery of votes, or other party 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; Elfbrandt v. Russell, 384 U. S. 11, 19 (1966); Wieman v. Updegraff, 344 U. S., at 190-191.^[19] Though those cases involved affiliation with the Communist Party, we do not "consider *366 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.

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.

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 (1973), and United Public Workers v. Mitchell, 330 U. S. 75 (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 *367 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 are 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.

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 in-party.

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 *368 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 should 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.

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.

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 (1976); CSC v. Letter Carriers, supra; Williams v. Rhodes, 393 U. S. 23 (1968); United Public Workers v. Mitchell, supra. But however important *369 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, at 32, 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]

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 *370 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]

To be sure, Letter Carriers and Mitchell upheld Hatch Act restraints sacrificing political campaigning and management, *371 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