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I believe the Court accepts (any  J sane person must accept) the premise that it is utterly impossible to erect, and enforce through litigation, a  J system in which no citizen is intentionally disadvantaged by the government because of his political beliefs. I say  J8 the Court accepts that, because the O'Hare opinion, in a rare brush with the real world, points out that O'Hare was not part of a constituency that must take its chance of being favored or ignored in the larger political process"for example, by residing or doing business in a region the government rewards or spurns  JH in the construction of public works. Ante, at 8. Of course. Government favors those who agree with its political views, and disfavors those who disagree, every day"in where it builds its public works, in the kinds of taxes it imposes and collects, in its regulatory prescriptions, in the design of its grant and benefit  JX Ԛprograms"in a million ways, including the letting of contracts for government business. What good reason has the Court given for separating out this last way, and declaring it to be (as all the others for some reason are not) an abridgment of the freedom of speech?  As I have explained, I would separate the permissible from the impermissible on the basis of our Nation's traditions, which is what I believe sound constitutional  J adjudication requires. In Elrod and Branti, the Court rejected this criterion"but if what it said did not make good constitutional law, at least it made some sense: the loss of one's job is a powerful price to pay for one's politics. But the Court then found itself on the fabled slippery slope that Justice Holmes's aphorism about history and logic warned about: one logical proposition detached from history leads to another, until the Court produces a result that bears no resemblance to the  J America that we know. The next step was Rutan, which extended the prohibition of political motivation from  J` firing to hiring. The third step is today's Umbehr,` "   which extends it to the termination of a government contract. And the fourth step (as I shall discuss anon)  J is today's O'Hare, which extends it to the refusal to enter into contractual relationships.  If it is to be possible to dig in our cleats at some point on this slope"before we end up holding that the First Amendment requires the City of Chicago to have as few potholes in Republican wards (if any) as in Democratic ones"would not the most defensible point of termination for this indefensible exercise be public employment? A public employee is always an individual, and a public employee below the highest political level  J (which is exempt from Elrod) is virtually always an individual who is not rich; the termination or denial of a public job is the termination or denial of a livelihood. A public contractor, on the other hand, is usually a corporation; and the contract it loses is rarely its entire business, or even an indispensable part of its entire business. As Judge Posner put it: BQ C  , , ( N N  Although some business firms sell just to government, most government contractors also have private customers. If the contractor does not get the particular government contract on which he bids, because he is on the outs with the incumbent and the state does not have laws requiring the award of the contract to the low bidder (or the laws are not enforced), it is not the end of the world for him; there are other government entities to bid to, and private ones as well. It is not like losing your job.  J LaFalce v. Houston, 712 F.2d 292, 294 (CA7 1983).wBQ d   ( , ,  Another factor that suggests we should stop this new enterprise at government employment is the much greater volume of litigation that its extension to the field of contracting entails. The government contracting decisions worth litigating about are much more numerous than the number of personnel hirings and firings in/ "   that category; and the litigation resources of contractors are infinitely more substantial than those of fired employees or rejected applicants. Anyone who has had even brief exposure to the intricacies of federal contracting law knows that a lawsuit is often used as a device to stay or frustrate the award of a contract to a competi J tor. See, e.g., Delta Data Systems Corp. v. Webster, 744  J F.2d 197 (CADC 1984); Delta Data Systems Corp. v.  J Webster, 755 F.2d 938 (CADC 1985). What the Court's decisions today mean is that all government entities, no matter how small, are at risk of 1983 lawsuits for violation of constitutional rights, unless they adopt (at great cost in money and efficiency) the detailed and cumbersome procedures that make a claim of political favoritism (and a 1983 lawsuit) easily defended against.  J  The Court's opinion in O'Hare shrugs off this concern with the response that [w]e have no reason to believe that governments cannot bear a like burden [to that in the employment context] in defending against suits alleging the denial of First Amendment freedoms to  J public contractors. Ante, at 12. The burden is, as I have suggested, likely much greater than that in the employment context; and the relevant question (if one rejects history as the determinant) is not simply whether the governments can bear it, but whether the inconvenience of bearing it is outbalanced by the degree of abridgment of supposed First Amendment rights (of corporate shareholders, for the most part) that would  J occur if the burden were not imposed.W  uB ԍ FTN    XgEpXFr  ddf < O'Hare makes a brief attempt to minimize the seriousness of the  uB litigation concern, pointing out that [t]he amicus brief filed on behalf of respondents' position represents that in the six years since  uB- our opinion in [Rutan] ... only 18 suits alleging First Amendment violations in employment decisions have been filed against Illinois  uB state officials. Ante, at 11. In fact the brief said at least eighteen  uBR cases, Brief for Illinois State Officials as Amici Curiae, at 3 (emR "##Ԯphasis added), and that includes only suits against state officials, and not those against the officials of Illinois' 102 counties or its  uB even more numerous municipalities. Those statistics pertain to em uB ployment suits, moreover"and as I have discussed, the contracting suits will be much more numerous.  uB#  O'Hare also says that we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals  uBH first recognized such claims, see Abercrombie v. Catoosa, 896 F.2d  uB 1228 (1990). O'Hare, ante, at 11!12. With respect, Abercrombie (which discussed this issue in two short paragraphs) was such an  uBm obscure case that even the District Court in Umbehr, located in the Tenth Circuit, did not cite it, though it discussed cases in other  uB jurisdictions. Umbehr v. McClure, 840 F.Supp. 837 (Kan. 1993). And when the Tenth Circuit reversed the District Court, it did not  uBI do so on the basis of Abercrombie"which, it noted, had simply  uB assumed that an independent contractor could assert a First Amendment retaliation claim and had given little reasoning to the matter but merely so suggested, without analysis. 44 F. 3d 876,  uB% 880 (1995) (emphasis added). Abercrombie was, in short, such a muffled clarion that even the courts did not hear it, much less the public at large. W The Court in J"    J Umbehr dismisses the risk of litigation, not by analogy to the employment context, but by analogy to the many governmentcontracting laws of the type I have discussed. We are aware, it says, of no evidence of excessive or abusive litigation under such provisions.  J8 Umbehr, ante, at 15. I am not sure the Court would be aware of such evidence if it existed, but if in fact litigation has been nonexcessive (a conveniently imprecise term) under these provisions, that is scant indication that it will be nonexcessive under the First Amendment. Uncertainty breeds litigation. Governmentcontracting laws are clear and detailed, and whether they have been violated is typically easy to ascertain: the contract was put out for bid, or it was  J not. Umbehr's new First Amendment, by contrast, requires a sensitive balancing in each case; and the factual question of whether political affiliation or J"   disfavored speech was the reason for the award or loss of the contract will usually be litigable. In short, experience under the governmentcontracting laws has little predictive value.  The Court additionally asserts that the line cannot be drawn between employment and independent contracting, because  o ! `the applicability of a provision of the Constitution has never depended on the vagaries of state or  J federal law.' l!  Umbehr, ante, at 11 (quoting Browning J Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492  Jp U.S. 257, 299 (1989) (O'Connor, J., concurring in part  JH and dissenting in part)); see also Umbehr, ante, at 10!11 (citing other cases). That is not so. State law frequently plays a dispositive role in the issue of whether a constitutional provision is applicable. In fact, before we invented the First Amendment right not to be fired for political views, most litigation in this very field of government employment revolved around the Fourteenth Amendment's Due Process Clause, and asked whether the firing had deprived the plaintiff of a property interest without due process. And what is a property interest entitled to Fourteenth Amendment protection?  u ! [P]roperty interests, we said, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law .... If it is the law of Texas that a teacher in the respondent's position has no contractual or other claim to job tenure, the respondent's [federal constitutional]  Jx claim would be defeated. Perry v. Sindermann, 408 U.S. 593, 602, n.7 (1972) (internal quotation marks  J( and citation omitted). See also Mt. Healthy City Bd. of  J Ed. v. Doyle, 429 U.S. 274, 280!281 (1977) (whether a government entity possesses Eleventh Amendment immunity depends, at least in part, upon the nature of the entity created by state law).  I have spoken thus far as though the only problem`"   involved here were a practical one: as though, in the best of all possible worlds, if our judicial system and the resources of our governmental entities could only  J manage it, it would be desirable for an individual to  J` suffer no disadvantage whatever at the hands of the government solely because of his political views"no denial of employment, no refusal of contracts, no discrimination in social programs, not even any potholes. But I do not believe that. The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few traditionbased exceptions, such as obscenity and fighting words) without going to jail  J or being fined. What it ought to guarantee beyond that is not at all the simple question the Court assumes. The ability to discourage eccentric views through the mild means that have historically been employed, and that the Court has now set its face against, may well be important to social cohesion. To take an uncomfortable example from real life: An organization (I shall call it the White Aryan Supremacist Party, though that was not the organization involved in the actual incident I have in mind) is undoubtedly entitled, under the Constitution, to maintain and propagate racist and antisemitic views. But when the Department of Housing and Urban Development lets out contracts to private security forces to maintain law and order in units of public housing, must it really treat this bidder the same as all others? Or may it determine that the views of this organization are not political views that it wishes to subsidize with public funds, nor political views that it wishes to hold up as an exemplar of the law to the residents of public housing?  The state and local regulation I described earlier takes account of this reality. Even where competitivebidding requirements are applicable (which is far from always), they almost invariably require that a contract be  J` awarded not to the lowest bidder but to the  lowest`"    J responsible bidder. ! L uBh ԍSee, e.g., Cal. Pub. Cont. Code Ann. 10302, 10507.7, 20803 (West  uB 1985 and Supp. 1996); Ill. Comp. Stat., ch. 50, 20/20, 25/3; id., ch. 70, 15/8, 15/9, 205/25, 220/1!24, 220/2!24 (1993); N.Y. Gen. Mun. Law 103.1 (McKinney Supp. 1996).L The word `responsible' is as important as the word `lowest,' !  H. Cohen, Public Construction Contracts and the Law 81 (1961), and has been interpreted in some States to permit elected officials to exercise political discretion. Some New York courts, for example, have upheld agency refusals to award a contract to a low bidder because the contractor, while technically and financially capable, was not morally responsible. Anechiarico & Jacobs 146!147. In the  J leading case of Picone v. New York, 176 Misc. 967, 29 N.Y.S.2d 539 (Sup. Ct. N.Y. Cty. 1941), the court stated that in determining whether a lowest bidder for a particular contract was the lowest responsible bidder, New York City officials had permissibly considered whether [the bidder] possessed integrity and moral  J worth. Id., at 969, 29 N.Y.S.2d, at 541. The New Jersey Supreme Court has similarly said [i]t is settled that the legislative mandate that a bidder be `responsible' embraces moral integrity just as surely as it embraces a capacity to supply labor and materials.  J Trap Rock Industries, Inc. v. Kohl, 59 N.J. 471, 481, 284 A. 2d 161, 166 (1971). In the future, presumably, this will be permitted only if the disfavored moral views of the bidder have never been verbalized, for otherwise the First Amendment will produce entitlement to the contract, or at least guarantee a lawsuit.  In treading into this area, we have left the realm of  J law and entered the domain of political science. Rutan,  J 497 U.S., at 113 (Scalia, J., dissenting). As Judge Posner rightly perceived, the issue that the Court today disposes of like some textbook exercise in logic raises profound questions of political science that exceed(l"    J judicial competence to answer. LaFalce v. Houston, 712 F.2d, at 294.  9H1 d d)IV؃  2  If, however, the Court is newly to announce that it has discovered that the granting or withholding of a contract is a First Amendment issue, a coherent statement of the new law is the least that those who labor in the area are entitled to expect. They do not get it from today's decisions, which contradict each other on a number of fundamental points.  J  The decision in Umbehr appears to be an improvement  J on our Elrod-Branti-Rutan trilogy in one sense. Rutan, the most recent of these decisions, provided that the government could justify patronage employment practices only if it proved that such patronage was narrowly  J> tailored to further vital governmental interests. Rutan,  J supra, at 74. The four of us in dissent explained that [t]hat strictscrutiny standard finds no support in our  J cases, and we argued that, if the new constitutional right was to be invented, the criterion for violation  Jv should be the test announced in Pickering [v. Board of  JN Ed. of Township High School Dist. 205, Will Cty., 391  J& U.S. 563 (1968)]. Rutan, supra, at 98, 100 (Scalia, J., dissenting). It thus appears a happy development that  J the Court in Umbehr explicitly rejects the suggestion,  J urged by Umbehr and by the United States as amicus  J curiae, that on proof of viewpointbased retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to  J serve a compelling state interest, Umbehr, ante, at 7;  J accord, ante, at 9, and instead holds that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of [independent contractors'] protection  JF under the First Amendment, ante, at 4. Pickering balancing, of course, requires a casebycase assessment"   of the government's and the contractor's interests.  J  Pickering and its progeny ... involve a post hoc analysis of one employee's speech and its impact on that  J employee's public responsibilities. United States v.  J` Treasury Employees, 513 U.S. ___, ___ (1995) (slip op.,  J8 at 11). See also id., at ___ (slip op., at 2) (O'Connor,  J J., concurring in judgment in part and dissenting in  J part) (Pickering requires casebycase application);  J Rankin v. McPherson, 483 U.S. 378, 388!392 (1987);  J Connick v. Myers, 461 U.S. 138, 150!154 (1983);  Jp Pickering v. Board of Ed. of Township High School Dist.  JH 205, Will Cty., 391 U.S. 563, 568!573 (1968). It is  J clear that this is what the Court's opinion in Umbehr  J anticipates: a factsensitive and deferential weighing of  J the government's legitimate interests, ante, at 8!9  J (emphasis added), which accords [d]eference ... to the government's reasonable assessments of its interests as  JX contractor, ante, at 9 (emphasis removed). [S]uch a  J0 nuanced approach, Umbehr says, which recognizes the variety of interests that may arise in independent  J contractor cases, is superior to a brightline rule.  Ante, at 9!10.  J  What the Court sets down in Umbehr, however, it rips  Jh up in O'Hare. In Part III of that latter opinion, where the Court makes its application of the First Amendment to the facts of the case, there is to be found not a single  J reference to Pickering. See O'Hare, ante, at 7!13. Indeed, what is quite astonishing, the Court concludes that it need not inquire into any government interests that patronage contracting may serve"even generally,  JP much less in the particular case at hand" for Elrod and  J( Branti establish that patronage does not justify the coercion of a person's political beliefs and associations.  J O'Hare, ante, at 5. Leaving aside that there is no"    J coercion here,2 uBh ԍAs the dissenters in Rutan v. Republican Party of Ill., 497 U.S. 62 (1990), agreed, it greatly exaggerates [the constraints entailed by patronage] to call them `coercion' at all, since we generally make a distinction between inducement and compulsion. The public official offered a bribe is not `coerced' to violate the law, and the private citizen  uB offered a patronage job is not `coerced' to work for the party. Id., at  uB 109!110 (Scalia, J., dissenting).2 the assertion obviously contradicts the need for balancing announced in the companion  J Umbehr decision. This rejection of balancing is evident  J elsewhere in O'Hare"as when the Court rejects as  J` irrelevant the Seventh Circuit's observation in LaFalce  J8 v. Houston, 712 F.2d 292 (1983), that some contractors elect to curr[y] favor with diverse political parties, on the ground that the fact [t]hat some citizens [thus] finda way to mitigate governmental overreaching, or refrain from complaining, does not excuse wrongs done to  Jp those who exercise their rights. O'Hare, ante, at 11. Butwhether the government action at issue here  J isĠa wrong is precisely the issue in this case,  J Ԛwhichwethought (per Umbehr) was to be determined by balancing.  One would have thought these two opinions the products of the courts of last resort of two different legal systems, presenting fertile material for a comparativelaw course on freedom of speech ... were it not for a  J single paragraph in O'Hare, a veritable deus ex machina of legal analysis, which reconciles the irreconcilable.  J The penultimate paragraph of that portion of the O'Hare opinion which sets forth the general principles of law  Jh governing the case, see ante, at 6!7, advises that henceforth the freedom of speech alluded to in the Bill of Rights will be divided into two categories: (1) the right of free speech, where we apply the balancing  J test from Pickering, and (since this right of free speech presumably does not exhaust the Free Speech"    J Clause), (2) political affiliation, where we apply the  J rigid rule of Elrod and Branti. The Court (or at least  J the O'Hare Court) says that [t]here is an advantage in so confining the inquiry where political affiliation alone is concerned, for one's beliefs and allegiances ought not to be subject to probing or testing by the government.  J O'Hare, ante, at 6.  Frankly, the only advantage I can discern in this novel distinction is that it provides some explanation (no matter how difficult to grasp) of how these two opinions can issue from the same Court on the same day. It raises many questions. Does the right of free speech (category (1), that is) come into play if the contractor  J not only is a Republican, but says I am a Republican? (At that point, of course, the fatal need for probing or testing his allegiance disappears.) Or is the right of free speech at issue only if he goes still further, and says I believe in the principles set forth in the Republican platform? Or perhaps one must decide whether the Rubicon between the right of free speech and the more  J protected political affiliation has been crossed on the  J basis of the contracting authority's motivation, so that it  J does not matter whether the contractor says he is a  Jh Republican, or even says that he believes in the Republican platform, so long as the reason he is disfavored is simply that (whatever he says or believes) he is a Republican. But the analysis would change, perhaps, if the contracting authority really has nothing against Republicans as such, but can't stand people who believe what the Republican platform stands for. Except  JP perhaps it would not change if the contractor never  J( actually said he was a Republican"or perhaps only if he  J never actually said that he believed in the Republican platform. The many variations will provide endless diversion for the courts of appeals.  If one is so sanguine as to believe that facts involving the right of free speech and facts involving political`"   affiliation can actually be segregated into separate categories, there arises, of course, the problem of what to do when both are involved. One would expect the  J more rigid test (Elrod nonbalancing) to prevail. That is certainly what happens elsewhere in the law. If one is  J8 categorically liable for a defamatory statement, but liable  J for a threatening statement only if it places the subject in immediate fear of physical harm, an utterance that which combines both ( Sir, I shall punch you in your lying mouth!) would be (at least as to the defamatory portion) categorically actionable. Not so, however, with our new First Amendment law. Where, we are told, specific instances of the employee's speech or expres J sion, which require balancing in the Pickering context, are intermixed with a political affiliation requirement,  J balancing rather than categorical liability will be the  J result. O'Hare, ante, at 6!7.  Were all this confusion not enough, the explanatory paragraph makes doubly sure it is not setting forth any comprehensible rule by adding, immediately after its  J description of how Elrod, rather than the Pickering balancing test, applies in political affiliation cases, the following: It is true, on the other hand, ... that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some casebycase adjudication will be required even where political affiliation is the test the government has imposed.  J O'Hare, ante, at 6. As I said in Rutan, [w]hat that  J means is anybody's guess. 497 U.S., at 111 (Scalia,  Jx J., dissenting). Worse still, we learn that O'Hare itself,  JP where the Court does not conduct balancing, may perhaps [be] includ[ed] among those many cases ... which require balancing because it is one of the intermixed cases I discussed in the paragraph immediately  J above. O'Hare, ante, at 6. Why, then, one is inclined  J to ask, did not the Court conduct balancing?  The answer is contained in the next brief paragraph`"    J of the O'Hare opinion: BQ C  , , ( N N  The Court of Appeals, based on its understanding of the pleadings, considered this simply an affiliation case, and held, based on circuit precedent, there was no constitutional protection for one who was simply an outside contractor. We consider the case in those same terms, but we disagree with the Court of  J+ Appeals' conclusion. Ante, at 7.)BQ +d   Jg  ( , , This is a deus ex machina sent in to rescue the Court's  J? deus ex machina, which was itself overwhelmed by the plot of this tragedy of inconsistency. Unfortunately, this  J adjutor adjutoris (to overextend, perhaps, my classical analogy) is also unequal to the task: The respondent in this case is entitled to defend the judgment in its favor  Jw on the basis of the facts as they were alleged, not as the  JO Court of Appeals took them to be. When, as here, the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in petitioners'  J complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate.  J Berkovitz v. United States, 486 U.S. 531, 540 (1988) (emphasis added). It is at least highly arguable that the complaint alleged what the Court calls a violation of the right of free speech rather than merely the right of political affiliation. The count at issue was entitled  K   FREEDOM OF SPEECH , see App. in No. 95!191, p.15, and contended that petitioners had been retaliated against because of the exercise of their constitutional  JH right of freedom of speech, id., at 17. One of the two central factual allegations is the following: John A. Gratzianna openly supported Paxson's opponent for the office of Mayor. Campaign posters for Paxson's opponent were displayed at plaintiff O'Hare's place of business.  J Id., at 16. It is particularly inexcusable to hide behind the Court of Appeals' treatment of this litigation as  J0  simply an affiliation case, since when the Court of0"   Appeals wrote its opinion the world had not yet learned that the Free Speech Clause is divided into the two categories of right of free speech and political affiliation. As far as that court knew, it could have substituted freedom of speech for freedom of political affiliation whenever it used the term, with no effect on the outcome. It did not, in other words, remotely make a finding that the case involves only the right of political affiliation. Unavoidably, therefore, if what the  J O'Hare Court says in its first explanatory paragraph is to be believed"that is, what it says in the latter part of that paragraph, to the effect that intermixed cases are  J governed by Pickering"there is simply no basis for  J reversing the Court of Appeals without balancing, and directing that the case proceed, effectively depriving the City of its right to judgment on the pleadings.  J  Unless, of course, Pickering balancing can never support the granting of a motion to dismiss. That is the  J0 proposition that today's O'Hare opinion, if it is not total confusion, must stand for. Nothing else explains how the Court can (1) assert that an intermixed case  J requires Pickering balancing, (2) acknowledge that the  J complaint here may set forth an intermixed case, and yet (3) reverse the dismissal without determining  J@ whether the complaint does set forth an intermixed case and, if so, proceeding to conduct at least a prelimi J nary Pickering balancing. There is of course no reason in principle why this particular issue should be dismissalproof, and the consequence of making it so, given the burdens of pretrial discovery (to say nothing of trial itself) will be to make litigation on this subject even more useful as a device for harassment and weapon of commercial competition. It must be acknowledged, however, that proceeding this way in the present case has one unquestionable advantage: it leaves it entirely to the district court to clean up, without any guidance or assistance from us, the mess that we have made"to`"   figure out whether saying Vote against Paxson, or Paxson is a hack, or Paxson's project for a 100,000-seat municipal stadium is wasteful, or whatever else Mr. Gratzianna's campaign posters might have said, removes this case from the Political Affiliation Clause of the Constitution and places it within the Right of Free Speech Clause.  One final observation about the sweep of today's hold J ings. The opinion in Umbehr, having swallowed the camel of First Amendment extension into contracting, in its penultimate paragraph demonstrates the Court's deepdown judicial conservatism by ostentatiously straining out the following gnat: Finally, we emphasize the limited nature of our decision today. Because Umbehr's suit concerns the termination of a preexisting commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on  J0 such a relationship. Umbehr, ante, at 17. The facts in  J Umbehr, of course, involved the termination of nothing so vague as a commercial relationship with the government; the Board of Commissioners had terminated  J Umbehr's contract. The fuzzier terminology is used,  Jh presumably, because O'Hare did not involve termination of a contract. As far as appears, O'Hare had not paid or promised anything to be placed on a list of towtruck operators who would be offered individual contracts as they came up. The company had no right to sue if the city failed to call it, nor the city any right to sue if the company turned down an offered tow. It had, in short, only what might be called (as an infinity of things might be called) a preexisting commercial relationship with the city: it was one of the towtruck operators they  J regularly called. The quoted statement in Umbehr invites the bar to believe, therefore, that the Court which declined to draw the line of First Amendment liability short of firing from government employment`"    J (Elrod and Branti); short of nonhiring for government  J employment (Rutan); short of termination of a govern J ment contract (Umbehr); and short of denial of a government contract to someone who had a preexisting  J` commercial relationship with the government (O'Hare); may take a firm stand against extending the Constitution into every little thing when it comes to denying a  J government contract to someone who had no preexisting commercial relationship. Not likely; in fact, not even believable.  This Court has begun to make a habit of disclaiming the natural and foreseeable jurisprudential consequences  J of its pathbreaking (i.e., Constitutionmaking) opinions. Each major step in the abridgment of the people's right to govern themselves is portrayed as extremely limited  J or indeed sui juris. In Romer v. Evans, 517 U.S. ___, ___ (1996) (slip op. at 11, 12), announced last month, the Court asserted that the Colorado constitutional amendment at issue was so distinctive that it defies ... conventional inquiry and confounds [the] normal  J process of judicial review. In United States v. Virginia,  J ante, at ___ n. 7 (1996), announced two days ago, the Court purported to address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as `unique.' T!  And in the cases announced today, we emphasize the limited nature of  J our decision. Umbehr, ante, at 17. The people should not be deceived. While the present Court sits, a major, undemocratic restructuring of our national institutions and mores is constantly in progress. 3 Stars %*** 3 Stars They say hard cases make bad law. The cases before the Court today set the blood boiling, with the arrogance that they seem to display on the part of elected officials. Shall the American System of Justice let insolent, pettytyrant politicians get away with this? What one tends>"   to forget is that we have heard only the plaintiffs' tale. These suits were dismissed before trial, so the facts the Court recites in its opinions assume the truth of the allegations made (or the preliminary evidence presented) by the plaintiffs. We have no idea whether the allegations are true or false"but if they are true, they are certainly highly unusual. Elected officials do not thrive on arrogance.  J  For every extreme case of the sort alleged here, I expect there are thousands of contracts awarded on a favoritism basis that no one would get excited about. The Democratic mayor gives the city's municipal bond business to what is known to be a solid Democratic law firm"taking it away from the solid Republican law firm that had the business during the previous, Republican, administration. What else is new? Or he declines to give the construction contract for the new municipal stadium to the company that opposed the bond issue for its construction, and that in fact tried to get the stadium built across the river in the next State. What else would you expect? Or he awards the cable monopoly, not to the (entirely responsible) Johnnycomelately, but to the local company that has always been a good citizen"which means it has supported with money, and the personal efforts of its management, civic initiatives that the vast majority of the electorate favor, though some oppose. Hooray! Favoritism such as this happens all the time in American political life, and no one has ever thought that it violated"of all things"the First Amendment to the Constitution of the United States.  The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize. Depending upon which of today's cases one chooses to consider authoritative, it  J has either (O'Hare) thrown out vast numbers of practices that are routine in American political life in order to get  J` rid of a few bad apples; or (Umbehr) with the same`"   purpose in mind subjected those routine practices to endless, uncertain, casebycase, balanceallthefactorsandwhoknowswhowillwin litigation.  I dissent.