Washington By TOM LITTLEWOOD

Supreme Court's anti-patronage decision bucks the federalist trend

CONTRARY to the impression the rest of the country sometimes has, political patronage employment was not invented in Illinois. The spoils system was developed to a fine art there though, and has thrived longer than in most places. So it was fitting that the U.S. Supreme Court's constitutional examination of the practice of giving government jobs to political helpers should have originated in Cook County. In one of the more hazily reasoned decisions of its last term, the court found that the use of political patronage to fill non policy-making public jobs violated the First Amendment rights of those payrollers who had the misfortune of actively supporting the candidate who lost. Every American's freedoms of political belief and association are protected equally by the Constitution, and that includes partisan soldiers of fortune, declared Justice William J. Brennan Jr. for the 5-to-3 majority.

Recent decisions
The decision was all the more remarkable because of the strong federalist tide that seems to be running these days in the nation's premier courthouse. For the first time in 40 years, the court struck down an exercise of congressional Power under the Commerce Clause when it was determined that the federal government lacked the authority to regulate the wages and hours of local Police and firemen. Other decisions significantly restricted access to federal courts by those claiming a violation of their constitutional rights by the states. The same policeman whose working conditions are not subject to federal law cannot go to the federal courts for a hearing either if he is unfairly discharged. Mistakes will be made in the many personnel decisions made by public agencies, stated the newest justice, John Paul Stevens, and federal court is not an appropriate forum for reviewing them all. Nor can a federal judge compel a city police department to devise procedures for dealing with citizen complaints about police brutality. No longer, under the new rules, can a state prisoner petition for a writ of habeas corpus to challenge the legality of the way the evidence used against him was obtained, unless he can show that he had no opportunity to raise the constitutional issue during his state trial.

All are examples of what Chief Justice Warren E. Burger proudly described as steps taken to " arrest the denigration of States to a role comparable to the departments of France, governed entirely out of the national capital. " He made that remark in a separate dissent from the majority opinion in the patronage case.

That class action suit was brought on behalf of the Republican sponsored process servers and others who were fired when Richard J. Eirod, a Democrat, was elected sheriff of Cook County. Only about half the sheriffs employees are covered by a merit system. Brennan said the free functioning of the electoral system suffers when an employee, even one who obtained his job through the patronage system, is discouraged from working for the candidate of his choice because of a fear that he will be unemployed. " 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, " explained Brennan. No "vital government end " is furthered by conditioning public employment on political activity, certainly not more efficient public service, he added.

Powell, a patrician lawyer from Richmond, Va., argued that patronage contributed to the democratization of American politics and prevented the domination of an aristocratic class. It is naive to suppose that elections to minor offices and the performance of routine party chores between elections are motivated by some academic interest in" democracy " or other public service impulse, Powell said. " For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties," he asserted.

Former Sen. Paul H. Douglas of Illinois was quoted in Powell's dissent as the source of a 1952 statement that " some support rooted in gratitude for material favors " is necessary for liberals to survive in Congress against " the powerful opposition of special-interest groups which will spend enormous sums of money to defeat us. "

At a time when citizen identification with either party is in serious decline, Powell found that patronage can serve an important state interest by encouraging stable parties and avoiding excessive political fragmentation. He also cited historic evidence that patronage employment has been an aid to minority groups in their struggle for social acceptance. Thurgood Marshall, the first black member of the high court, looked aghast when that thesis was propounded during oral arguments. In any event, Powell, Burger and a third justice, William Rehnquist, considered the elected representatives in the Illinois legislature better equipped than judges to weigh the desirable balance between the merit and patronage systems. But, theirs was the minority opinion; the majority of five justices prevails.ž

October 1976 / Illinois Issues / 31