Inc. v. City of Northlake O'Hare Truck Service

Justice Scalia filed a dissent, joined by Justice Thomas. He began with a quotation from his dissent in Rutan:

When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.

The Supreme Court was not the proper forum for debating patronage, he claimed. The legislative branch had produced volumes of regulations for patronage practices; these "have brought to the field a degree of discrimination, discernment, and predictability that cannot be achieved by the blunt instrument of a constitutional prohibition."

Scalia further questioned the Court's failure to provide a clear precedent for deciding patronage cases. The distinction between pure affiliation cases and speech cases was confusing and pointless. He also argued that the court had hedged on whether the affiliation test was to be absolute when it allowed for some "case-by-case adjudication" in affiliation cases.