Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism

Abstract

Since the arrival of Chief Justice Roberts and Justice Alito during the October 2005 Term, formalism has become more prevalent in the Supreme Court's decisions. One illustration is Garcetti v. Ceballos, where the Court held that public employees' speech pursuant to their official duties merits no constitutional protection at all from employer discipline, irrespective of the speech's importance. The Court created this dispositive categorization despite the fact that, as my article details, the individualized circumstances supporting such rule-based adjudication were missing. As a result, Garcetti can only be understood as indicating the meta-preference for rules over standards that represents formal juristic reasoning. Other recent decisions also portend an emerging formalist voting bloc consisting of Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The most likely fifth vote to join the formalism four is Justice Kennedy, who has indicated a preference for formalism in certain doctrinal areas, such as free speech (as in Garcetti), federalism, and state sovereignty. Thus, we may be witnessing the beginning of an era of doctrinal formalism on the Court, in which rules will be favored in specified contexts to further judicial deference to the political institution perceived to be in the best position to make the underlying judgment.

Keywords: Formalism, First Amendment, public employee speech

JEL Classification: K10