Mixed Motives Speak in Different Tongues: Doctrine, Discourse, and Judicial Function in Class-of-One Equal Protection Theory

Article excerpt

The class-of-one equal protection claim is a red-headed stepchild of constitutional law. It expresses the principle of impartiality at the heart of the Equal Protection Clause, but is divorced from the group-centered tiered scrutiny of traditional equal protection analysis. Claimants who invoke it rarely succeed, yet many courts believe it could create systemic disruption unless its scope is limited This article concerns the differing approaches employed by Chief Justice Roberts and by Judge Richard Posner, of the Seventh Circuit, U.S. Court of Appeals, in drawing and justifying boundaries on the class-of-one cause of action. In Engquist v. Oregon Department of Agriculture, Chief Justice Roberts articulated a categorical approach that would insulate discretionary decisions of public officials from potential class-of-one litigation. Judge Posner, on the other hand, favors reform from within, advocating that a plaintiff should be required to plead (and substantiate) impermissible subjective purpose to state a prima facie claim challenging a discretionary decision by a public official. The differences in their respective approaches portend very different futures for class-of-one litigation and the judiciary's role in adjudicating class-of-one claims.


When then-nominee John G. Roberts appeared before the United States Senate Judiciary Committee as part of his confirmation hearings, (1) he described his judicial philosophy by employing an extended simile:

   Judges and Justices are servants of the law, not the other way
   around. Judges are like umpires. Umpires don't make the rules, they
   apply them. The role of an umpire and a judge is critical. They
   make sure everybody plays by the rules, but it is a limited role.
   Nobody ever went to a ballgame to see the umpire. (2)

Roberts's analogy freshened up an old platitude of judicial restraint and echoed central concepts of rules-based jurisprudence previously endorsed by Justice Scalia. (3) In such an idealized legal landscape, rules are always already in place to provide a determinate principle on which to base a decision, a principle independent of the decision-maker and the specific facts at issue. For law to fulfill its proper function, it must be administered by judges whose willingness to faithfully enforce pre-existing rules overcomes any desire to fashion outcomes and doctrine on the basis of their subjective ideological views.

If the rules-constrained judge is the protagonist in Roberts's tale, then the foil is the unrestrained, activist, policy-oriented judge who makes rules, rather than applies them, and who exceeds the limited role envisioned by the Constitution. The judge-as-umpire analogy functions as a shorthand trope against (self-aggrandizing) judicial activism and in favor of (self-restraining) judicial humility. Effective as public relations, the analogy has retained its currency after Roberts's confirmation. (4) But it remains unclear the extent to which this analogy accurately foreshadowed the particular commitments that John Roberts would pursue, or the manner in which he would pursue them, after he was confirmed and assumed the role of Chief Justice.

Roberts has not declared allegiance to originalism, textualism, or any other --ism as his chosen theory of constitutional interpretation. He speaks often of judicial modesty and judicial self-restraint, but judicial restraint is itself a trope and it can be invoked to reach markedly different results and to justify markedly different doctrinal projects. (5) At times Roberts has embraced minimalism--rolling back certain doctrines, rather than eliminating them altogether--which has drawn pointed criticism from Justice Scalia, a colleague who tends to vote on his side of the ledger. (6) Obviously, the best measure of Roberts's judicial philosophy is in his opinions. (7) All the same, given the context in which it was given, I submit that the umpiring analogy was not merely a soundbite, but was meant to convey something central to Roberts's conception of the role of the judiciary and of the individual judge. …