Constitutionalizing Merit? Practical Implications of Elrod, Branti, and Rutan

Abstract

This article updates the legal principles con tained in the celebrated Elrod and Branti decisions by examining the Supreme Court's more recent pronouncements in Rutan v. Republican Party of Illinois. The Rutan decision extends the impact of the previous cases by going beyond patronage dismissals and granting protection to employees victimized by certain other adverse personnel prac tices. Difficulties inherent in identifying positions which may legitimately be classified as policymaking in nature are discussed, and the potential impacts on employers and employees are examined.