"When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes..."

"...and the Constitution does not insulate their communications from employer discipline," writes Justice Kennedy in Garcetti v. Caballos, issued today.

Justice Alito was part of the 5 man majority....

(Yeah, I'm saying "5 man majority," not "5 person majority." Justice Ginsburg was in the dissent. I'm going to say "man" for whatever group Ginsburg isn't in. It's a solid, concrete word -- "man," unlike "person" -- so I like it from a plain English perspective, but I think it's good to highlight the gender disproportion on the Court.)

.... Should we call Alito the "deciding vote"? It seems more appropriate to think of Kennedy as the deciding vote, that is, the man among the 5 most likely to have voted with the dissenting group. But Alito replaced O'Connor, and O'Connor might well have voted with the dissenters. In that sense, we may perceive him as the deciding vote. As Marty Lederman writes:

[The case was] originally argued in the [October] sitting and then reargued after Justice Alito joined the Court. ... As I predicted here, Justice Souter -- who likely was assigned to write the majority before Justice O'Connor's retirement -- wrote a dissent, joined by Justices Stevens and Ginsburg.

As to the substance of the decision, Lederman explains some of the complexities of what he calls "a very significant doctrinal development" in the case:

[I]t appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional [sic] protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors?

Is that a perverse incentive? Why might it make sense? Justice Kennedy writes:

Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.

Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.