Wabaunsee County Board of County Commissioners Kansas v. Umbehr

Justice Scalia, joined by Thomas, delivered a dissent that by its very first sentence clearly revealed his frustration with the majority decision: " . . . this Court's Constitution-making process can be called `reasoned adjudication' only in the most formalistic sense." Later in his opinion he was even more critical: "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."

To Scalia, there was no basis in affording Umbehr the protection the majority granted him; however undesirable, political patronage was "an American political tradition as old as the Republic," and "such traditions are the stuff out of which the Court's principles are to be formed." The public, through its representatives in government, has regulated the granting of government contracts in many and various ways, and should it see fit, it could further regulate. The Constitution, however, does not expressly proscribe such activity as occurred in the case at hand, and therefore it cannot be used to prevent it. Scalia also rejected the majority's refusal to distinguish between independent contractors and government employees, holding that independent contractors were less vulnerable than government employees, and lack of clear distinctions between the two would likely lead to excessive litigation.