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

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IV. CHARTING A NEW COURSE BY FOUNDING A DIFFERENT DISCOURSE

Engquist holds that the class-of-one claim makes a "poor fit" in the employment context and therefore will not be recognized therein. (155) Read strictly, it stands for the proposition that the government, in its role as employer, should not be subjected to class-of-one claims to which private employers are not subjected. (156) Engquist was not so narrowly written, nor was it intended to be so narrowly read. Roberts's use of broad, amorphous concepts extends his analysis beyond the strict confines of the holding, (157) but this should not be thought of as analytic oversight or a result of fuzzy thinking. (158)

To the contrary, the opinion's overreaching is purposeful, the concepts driving its analysis are broad-gauged and open-ended for good reason, and the formalist leaps that Roberts undertakes are made in service of an expedient end. (159) To fault Engquist for failing to achieve analytic precision is, as Roberts said in a different setting, "somewhat like criticizing a person for speaking awful French, only to discover that he was in fact speaking fluent Spanish." (160) The analysis in Engquist is intended to inaugurate a different conception of how the judiciary should approach class-of-one litigation. Rather than sounding the merits of a particular claim, it asks about the nature of the public action that is under challenge. It invites the question: in what other contexts should discretionary decisions of public officials that allegedly single out a citizen for differential treatment be shielded from the Equal Protection Clause? Engquist is evocative and aspirational in providing lower courts with a discourse and vocabulary with which to tackle this question.

In the process, Roberts establishes a number of substantive themes that will likely reverberate in the continued development of the class-of-one doctrine. Roberts takes personnel decisions in the public employment context to be a species of a larger class of government actions whose defining feature is the subjective, discretionary nature of the decision-making process. Rather than try to integrate the defendant's subjective intent into the class-of-one analysis, he concluded that the inscrutability of subjective intent counsels limited recognition of the cause of action. He stakes out a claim for a categorical approach that would foreclose class-of-one challenges to certain forms of discretionary action. In elaborating this framework, Roberts flirts with the notion that there is something intrinsic to a discretionary decision that makes it incompatible with the idea of equal protection altogether. (161)

A. FACTUAL AND PROCEDURAL BACKGROUND

In 1992, Norma Corristan hired Anup Engquist, the plaintiff-petitioner, to work as an international food standard specialist at a laboratory within the Oregon Department of Agriculture ("ODA"). (162) While working at the lab, Engquist complained to Corristan about the conduct of Joseph Hyatt, another ODA employee who allegedly made false statements about Engquist and generally made her life difficult. (163) Corristan had Hyatt attend diversity and anger management training. (164)

In 2001, John Szczepanski, an assistant director at ODA, assumed supervision of Corristan, Hyatt, and Engquist. (165) Szczepanski disparaged Engquist and Corristan and intimated to a client that they "would be gotten rid of." (166) When a managerial position opened up, Engquist and Hyatt each applied. (167) Szczepanski chose Hyatt despite Engquist's greater experience. (168) That same year, during budget cuts, Szczepanski eliminated Corristan's position. (169) He cut Engquist's position in January 2002. (170) Faced with "bumping" to another position or being demoted, Engquist found that she was unqualified for lateral transfer to a position at her level and declined a demotion. (171)

Corristan brought suit in state court and was awarded $1.1 million in damages. (172) Engquist brought suit in federal court, alleging that ODA, Hyatt, and Szczepanski had violated state law, federal antidiscrimination statutes, and both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. (173) She alleged that she had been discriminated against on the basis of race, sex, and national origin in violation of the Equal Protection Clause, and also stated a class-of-one claim, alleging that she had been fired for "arbitrary, vindictive, and malicious reasons." (174)

The District Court granted summary judgment on some claims and the case proceeded to trial on others, including the class-of-one claim. (175) The District Court reasoned that the class-of-one claim was legally viable and that

   Engquist could succeed on that theory if she could prove "that she
   was singled out as a result of animosity on the part of Hyatt and
   Szczepanski"--i.e., "that their actions were spiteful efforts to
   punish her for reasons unrelated to any legitimate state objective"
   --and if she could demonstrate, on the basis of that animosity,
   that "she was treated differently than others who were similarly
   situated."
   (176)

At trial, the jury rendered judgment for Engquist on the class-of-one claim and several other claims and awarded her $175,000 in compensatory damages and $250,000 in punitive damages. (177)

The defendants appealed from that judgment, and the Ninth Circuit reversed in relevant part, concluding that Engquist's constitutional claims were invalid as a matter of law and holding that "the class-of-one theory of equal protection is inapplicable to decisions made by public employers with regard to their employees." (178) Engquist petitioned for certiorari, which the Supreme Court granted, and the majority, led by Chief Justice Roberts, upheld the Ninth Circuit's reversal. (179)

B. DOWN A DIFFERENT ANALYTIC PATH

Roberts begins with the unassuming proposition that the Government has broader powers in its role as employer than in its role as regulator. From this, Roberts draws two main principles: first, the individual rights of employees "must be balanced against the realities of the employment context." (180) Second, "in striking the appropriate balance," the Court must "consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer." (181) The balancing permits the Court to weigh two mutually exclusive values--government autonomy as against individual rights--and emphasizes the "realities of the employment context" as a reason why primacy may be given to government autonomy. Whether such primacy should be given turns on whether the claims at issue strike at the core of a constitutional provision or sit at its periphery. As a practical matter, the balancing test runs in one direction, so as to devalue the significance of employees' rights.

In trying to locate Engquist's claim on the spectrum of equal protection, Roberts begins by reclaiming Olech--the only extant Supreme Court class-of-one precedent--in terms more amenable to traditional equal protection analysis. "What seems to have been significant in Olech and the cases on which it relied[,]" according to Roberts,

   was the existence of a clear standard against which departures,
   even for a single plaintiff, could be readily assessed. There was
   no indication in Olech that the zoning board was exercising
   discretionary authority based on subjective, individualized
   determinations--at least not with regard to easement length,
   however typical such determinations may be as a general zoning
   matter. Rather, the complaint alleged that the board consistently
   required only a 15-foot easement, but subjected Olech to a 33-foot
   easement. This differential treatment raised a concern of arbitrary
   classification, and we therefore required that the State provide a
   rational basis for it. (182)

Roberts defines "arbitrary classification" as an inexplicable deviation from a clear standard, which can be helpfully contrasted with differential treatment stemming from "subjective, individualized determinations." The former gets at a "basic concern" of the equal protection claim, whereas the latter is more peripheral.

Later in the opinion, Roberts specifies that "recognition of a class-of-one theory of equal protection in the public employment context--that is, a claim that the State treated an employee differently from others for a bad reason, or for no reason at all--is simply contrary to the concept of at-will employment." (183) Consistent with the balancing test, class-of-one claims cannot be reconciled with public at-will employment and must give way to the requirements of the government as employer, including the right to exercise autonomy in making personnel decision. Roberts was not content to end there, but instead asked and then tried to answer a question that was much more abstract and consequential: should judges be scrutinizing public officials' discretionary decisions that are not alleged to be based on impermissible classifications in the first place?

Some have taken the answer Roberts sketched out to forecast a new faultline in constitutional law and the exercise of judicial review. (184) The easiest entrance point into his analysis comes in his attempt to identify the constitutive features of decisions that class-of-one litigation might call into question. He asserts that

   [t]here are some forms of state action, however, which by their
   nature involve discretionary decisionmaking based on a vast array
   of subjective, individualized assessments. In such cases the rule
   that people should be "treated alike, under like circumstances and
   conditions" is not violated when one person is treated differently
   from others, because treating like individuals differently is an
   accepted consequence of the discretion granted. In such situations,
   allowing a challenge based on the arbitrary singling out of a
   particular person would undermine the very discretion that such
   state officials are entrusted to exercise. (185)

Disparate results should not give rise to a constitutional claim, Roberts reasoned, because the potential for disparate results (even among seemingly similarly situated people) inheres in the subjective discretionary authority granted to make the decision. (186) The absence of justification for the disparity, in Roberts's view, should not provide a basis to challenge the action. Asking for reasons calls into question the authority under which the action was taken: Granting an official the discretion to make subjective, individuated decisions is tantamount to accepting the consequences of the decisions, with no questions asked. (187)

The notion that discretionary decisions should be exempted from class-of-one liability has a direct analogue to the discretionary function exception in the Federal Torts Claims Act ("FTCA"). (188) Conduct by federal employees that constitutes "a discretionary function" is exempt from FTCA coverage by statute. (189) This exception is often understood to reflect the congressional imperative to prevent judicial "'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy[.]" (190) Because the exception confers immunity from suit, rather than being an affirmative defense, it cuts many claims against the federal government off at the pass. (191) Roberts's analysis is geared toward developing a similar distinction in the class-of-one context and enshrining it as constitutional doctrine.

To flesh out this theory of subjective decision-making, Roberts provides an example that centers on an officer's decision to issue a speeding ticket:

   Suppose, for example, that a traffic officer is stationed on a busy
   highway where people often drive above the speed limit, and there
   is no basis upon which to distinguish them. If the officer gives
   only one of those people a ticket, it may be good English to say
   that the officer has created a class of people that did not get
   speeding tickets, and a "class of one" that did. But assuming that
   it is in the nature of the particular government activity that not
   all speeders can be stopped and ticketed, complaining that one has
   been singled out for no reason does not invoke the fear of improper
   government classification. Such a complaint, rather, challenges the
   legitimacy of the underlying action itself--the decision to ticket
   speeders under such circumstances. Of course, an allegation that
   speeding tickets are given out on the basis of race or sex would
   state an equal protection claim, because such discriminatory
   classifications implicate basic equal protection concerns. But
   allowing an equal protection claim on the ground that a ticket was
   given to one person and not others, even if for no discernible or
   articulable reason, would be incompatible with the discretion
   inherent in the challenged action. It is no proper challenge to
   what in its nature is a subjective, individualized decision that it
   was subjective and individualized. (192)

The analogy was given as part of the justification for why a class-of-one claim is at the periphery of the equal protection doctrine. Because it is at the periphery, so goes the opinion, the Court was justified in subordinating the individual employee's right to bring a class-of-one claim to the government's interest in maintaining its sphere of discretion in employment matters. In other words, the categorical rule that class-of-one claims have no application in the public employment context is an incidental offshoot of the broader principle that individual rights may be diluted when set against the "practical realities" of public employment. (193)

The expansive dicta in Engquist, however, treat the public employment context as a representative example of a more basic incommensurability between the class-of-one claim and a broad swath of discretionary decisions. This is a more aspirational theory that does not balance individual rights against the government's interest, but seeks to establish--as a conceptual matter and as constitutional doctrine--that the class-of-one cause of action cannot be squared with forms of state action "which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments." (194)

C. FLOATING THE INCOMMENSURABILITY THESIS

Numerous commentators have taken issue with these passages in Engquist and the implications that might be drawn from them. (195) These criticisms are well-grounded and thoughtful foundational statements for how to read and understand Engquist. My focus is directed at assessing what doctrinal possibilities this approach opens up, i.e., what doctrinal work these passages perform, and, secondly, how those possibilities privilege certain jurisprudential values over others.

Roberts contends that disparate impact should be seen as an "accepted consequence" of the exercise of the discretionary authority, (196) but leaves no room for the possibility that disparate impact may be pursued for an illegitimate purpose. Part of this reflects an epistemological anxiety: Roberts appears to have doubts about whether the judiciary is fit for the task of distinguishing between legitimate and illegitimate purposes based on evidence of an actor's subjective motivations. (197) The burden and benefits of a particular decision may be distributed disproportionately for reasons that the decisionmaker cannot "articulate and quantify," and consequently, disparate impact may result for "no discernible or articulable reason." (198) A streak of epistemological anxiety has run through class-of-one jurisprudence since its inception. (199) The question is what doctrinal response, if any, that anxiety might elicit.

One possibility would be to take this decision out of the hands of judges and entrust it to juries, to whom the judicial system assigns the task of weighing the credibility of witnesses, making determinations of intent, and generally sorting through the type of fact-intensive issues that repeatedly spring up in the class-of-one context. (200) After all, Engquist, the petitioner, convinced a jury that she had been singled out for arbitrary, vindictive, and malicious reasons and collected significant damages; (201) her co-worker collected even more in a parallel state proceeding. (202) But that possibility would increase the strain on the judiciary and likely increase the potential intrusion that judicial proceedings would have on the types of discretionary decisions that Roberts believes should be insulated. In short, that possibility is exactly what Engquist seeks to foreclose.

The notion that class-of-one claims are conceptually incommensurate with the exercise of discretionary authority is a means to that end. This notion also voices a concern that class-of-one litigation asks more from officials (and more from judges) than should be expected. Asking an official to give reasons and to account for his actions not only risks undermining that authority, (203) but also risks imposing liability for disparity, which Roberts claims is unavoidable. Roberts is clearly wary of ways in which the class-of-one claim could call forth something akin to de novo review of individual discretionary authority. (204) That it would effectively enlist the judiciary to oversee and second-guess the subjective decisions of public officials (including law enforcement) is an additional cause for concern. (205)

Accordingly, it is not so much that the class-of-one cause of action does not "implicate the basic concerns" of equal protection, i.e., that the law be applied on equal terms to similarly situated people. Rather, class-of-one claims implicate those concerns too often and without easily defined criteria for distinguishing between constitutionally offensive disparate impact and disparate impact that is incidental to the exercise of discretionary authority. Rather than take the decision of weighing the motivations of the public official out of the judge's hands and submitting it to the jury, Engquist structures the analysis so that subjective motivation does not come into play.

Roberts emphasizes the form of the state action as a putatively neutral ground upon which to cleave the class-of-one universe in two. On the one hand, there are Olech-like cases, which involve allegedly inexplicable deviations from clear rules, such as the length of an easement required by a municipality. On the other hand, there are Engquist-like cases, which involve discretionary decisions based on an array of subjective, individuated factors, such as personnel decisions or the issuance of tickets for law enforcement violations. Under Roberts's analysis, the first are actionable under a class-of-one theory, whereas the second are not.

This approach cuts through the fact-specific, case-by-case analysis that class-of-one litigation precipitates and substitutes a bright-line categorical analysis that works at the threshold of the claim itself. Kathleen Sullivan has noted that categorical approaches in constitutional analysis tend to "promote economies for the legal decisionmaker by minimizing the elaborate, time-consuming, and repetitive application of background principles to facts." (206) Categorical approaches are "rule-like" in that they "define[] brightline boundaries and then classif[y] fact situations as falling on one side or the other." (207) Under the "taxonomic" categorical approach, "legal questions turn on differences in kind," not of degree. (208)

Roberts cultivates all of these features in Engquist. The approach is reductionist, in the sense that it avoids the thornier questions related to the similarly situated element, the rational basis test, and the potential application of qualified immunity. Furthermore, this approach brackets the question of subjective intent entirely, making it unnecessary to consider whether a particular decision was made "because of, rather than in spite of" the adverse effects it would render on the citizen burdened by the discretionary decision.

Whatever its jurisprudential merits, the provenance of the categorical rule is curious, to say the least. In an analytic sleight-of-hand, Roberts's incommensurability thesis departs dramatically from the balancing test with which he begins. (209) In the narrow reading of Engquist, the individual employee's interest is made subordinate to the government's interest in autonomy and efficiency. (210) The incommensurability thesis, however, calls the entire enterprise into doubt in all contexts where the decision to be challenged is subjective and discretionary. (211)

At bottom, the driving force behind the categorical approach is a preference for a particular mode of constitutional analysis over another, but that preference should be understood instrumentally, i.e., in terms of the consequences that follow from it. (212) In Roberts's analysis, minimizing or eliminating the class-of-one claim is a necessary prophylactic to conceptual incoherence. Moreover, his analysis avoids the unpalatable prospect of federal judges increasingly overseeing and evaluating discretionary decisions. But the analysis also strives to prevent the potential aggrandizement of the judicial function. The normative suppositions on which Roberts proceeds--that certain discretionary decisions ineluctably create disparate treatment and that the judiciary is ill-suited to second-guess those decisions as a matter of institutional wherewithal and as a matter of constitutional design--are arguably the most significant doctrinal feature of the Engquist opinion.

D. CURBING CLASS-OF-ONE LITIGATION BY CURBING JUDICIAL REVIEW.

Engquist gives lower courts a foothold to divide up the class-of-one universe into those cases that challenge "arbitrary classification" (as Olech is redefined in the Engquist opinion) and those that challenge "subjective, individuated decisions." That distinction is described, but not clearly articulated in Engquist. This makes strategic sense. Establishing a set of criteria to determine which subjective, discretionary decisions are immune from class-of-one challenge would defeat the central benefit--simple and direct categorization--that this mode of analysis is intended to confer.

On the strength of Engquist's incommensurability thesis, some lower courts have extended the categorical bar on class-of-one claims beyond the public employment context. (213) Other courts have rejected the bright-line formal absolutism that Engquist held out as a model and instead consider that approach as one among several on a continuum of analytic choices. (214) For example, consider the Second Circuit's statement: "Engquist does not bar all class-of-one claims involving discretionary state action. While there may be some circumstances where Enqquist is properly applied outside of the employment context, the case before us is not one of them." (215) Ironically, the viability of the incommensurability thesis--which is intended to lessen the discretion accorded to judges by creating a bright-line rule that protects discretionary decisions of public officials--is now an open question. Whether a particular discretionary state action is subject to a class-of-one claim appears to be a judgment call of the judge or appellate panel before whom the case is presented.

The mixed reception that Engquist has received follows, in part, from the fact that Roberts was limited to setting down doctrinal markers for the future, rather than creating binding precedent. (216) If it gains additional adherents in the lower courts, Roberts's approach may slowly refashion the gestalt of class-of-one analysis from a case-by-case assessment to a categorical approach. Such a shift would also call for a very different role for the courts. (217)

The broad, suggestive sweep of Engquist's analysis is paradoxically an example of judicial overreaching conducted for the purpose of inspiring judicial restraint. Engquist's expansive dicta bespeak a desire to convince the federal judiciary to reduce dramatically the role it plays in adjudicating class-of-one claims. In other words, Engquist--in its message, if not its method---cultivates a conception of judicial modesty and a very limited judicial role of which Roberts spoke during his confirmation hearings. (218) Professor Powell has followed this line of thought in a provocative discussion of what Engquist might forebode for constitutional analysis in the future. (219) He contends that the hands-off role it assigns to the judiciary could potentially usher in a new constitutional paradigm in which certain types of government action would step free from the threshold rational basis requirement and be constrained exclusively by political forces and bureaucratic oversight. (220) Under such a paradigm, "[t]here is a domain of rule-governed official behavior and a domain where, as far as the Constitution is concerned, officials may do as they will." (221)

In a passage that Judge Posner quotes in his portion of Del Marcelle, Professor Powell suggests that Engquist can be read

   as a strategic decision, intended to keep the judiciary out of an
   area in which it would be extremely difficult for courts to
   vindicate the constitutional norm without undue interference in the
   functioning of the political branches. Without a 'clear standard'
   to apply to personnel decisions, courts would find themselves
   simply second-guessing the executive or administrative officials
   who made the decisions on a discretionary basis in the fu'st place,
   thereby 'undermin[ing] the very discretion that such state
   officials are entrusted to exercise.' The point of Engquist, on
   this reading, would not be that government is constitutionally free
   to make employment decisions based on whim or animus toward an
   individual employee, but rather that given the difficulty of
   ascertaining or even articulating the basis for many such
   decisions, it is preferable for the courts to abstain. (222)

In this way, the broader rationale of Engquist operates at two registers: the formalist register defines an essential characteristic of subjective, individuated decisions and identifies a categorical limitation on class-of-one equal protection claims that inexorably follows from that characteristic. (223) The practical register addresses two areas of concern: (1) whether the judiciary has the institutional competence to parse the subjective motivations of public officials who make innumerable on-the-ground decisions on a daily basis and, in the process, call their exercise of discretion into question; (224) and (2) whether the judiciary has the institutional capacity to handle the flood of litigation that might ensue if each public decision that results in disparate treatment might be susceptible to constitutional challenge under the class-of-one theory. (225)

Whether these practical concerns justify the particular formalist tool Roberts has offered--a categorical exclusion of each and every class-of-one claim that challenges a subjective, discretionary decision--is a more complex question. In turning to the Seventh Circuit's en banc decision in Del Marcelle, it quickly becomes apparent that these practical concerns continue to pervasively influence how judges conceive the class-of-one doctrine. But Del Marcelle makes equally apparent that Engquist is one among many conceptions of what form that doctrine should take.

V. ACCEPTING THE DIAGNOSIS, REJECTING THE CURE: JUDGE POSNER'S ATTEMPT TO REDEEM ENGQUIST IN PRAGMATIST TERMS

Del Marcelle is an extraordinary decision. Three prominent jurists, all of whom are well-respected academics at the University of Chicago Law School, attempted to identify a workable approach to the class-of-one theory and came up with three distinct analytic frameworks. If nothing else, Del Marcelle demonstrates the difficulty in arriving at an analytical approach that achieves some modicum of stability, consistency, and predictability without sacrificing the values that the Equal Protection Clause is intended to safeguard. Although Del Marcelle in its entirety offers a rich vein of constitutional analysis on the class-of-one claim, this section focuses almost exclusively on Judge Posner's opinion.

Posner agrees with much of what Engquist has to say about the practical problems that arise in class-of-one litigation that targets discretionary decision-making. Nonetheless, he declined the urge to avoid those problems by banishing the class-of-one claim from all areas of discretionary decision-making. The premises may be correctly stated, but neither the outcome nor the mode of analysis follows ineluctably from these premises as a matter of logical or conceptual necessity. Doctrine is to be made, not found, and constructed, not revealed. In this fashion, Posner's conception of the class-of-one problem and the solution he proposes conform to his brand of legal pragmatism.

Posner engages class-of-one precedent to provide empirical orientation to the discussion of how the class-of-one doctrine should be structured. He speaks explicitly in terms of systemic costs and benefits in discussing which types of class-of-one claims should be permitted. Along the way, he uses analogies and hypotheticals to dramatize the counterintuitive results that uncabined class-of-one analysis would yield.

That a particular act or decision answers to our everyday definitions of "arbitrary," "irrational," or "random" does not mean that act or decision runs afoul of the Equal Protection Clause. On the other hand, that a particular act or decision calls on discretion or subjective determinations does not mean that it necessarily comports with the Equal Protection Clause either. It is not the label or the conceptual category that drives the analysis in Posner's scheme, but the ability of the plaintiff to establish that the discretionary actor was motivated by an impermissible purpose. Permitting class-of-one litigation in all contexts comes at too high a systemic cost, while erecting a per se bar on claims for all discretionary decisions creates a license for aberrant behavior by public officials. Splitting the difference, Posner would add a substantive element to the cause of action--the subjective impermissible purpose element--and permit only those claims that satisfy it.

A. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Lewis D. Del Marcelle brought a 42 U.S.C. [section] 1983 civil rights action against law enforcement officers in Brown County, Wisconsin, and against the county itself. (226) Proceeding pro se, Del Marcelle alleged that Brown County and Village of Ashwaubenon law-enforcement authorities had denied him and his wife of the equal protection of the laws. (227) As evidence, he described incidents that occurred in the preceding months and a longer pattern of conduct going back several years. (228)

Specifically, Del Marcelle alleged the following well-pleaded facts. While living in Brown County, he clashed with a local motorcycle gang, some members of which were law enforcement personnel. (229) When the dispute escalated, Del Marcelle was subjected to harassment and threats; theft and vandalism; damage to his car; and other distressing misconduct by the members of the motorcycle gang, including former police officer Mark Taggart. "(230) Del Marcelle reported these activities to the sheriff and other governmental officials, but was ignored and subjected to citations for his actions in response to the mistreatment. (231) In response to the harassment, Del Marcelle moved to the Village of Ashwaubenon, also located in Brown County, but the motorcycle gang followed and continued to harass him there. (232) Taggart lived down the street from Del Marcelle in the Village of Ashwaubenon, and when each complained about the other to village police, Taggart's conduct was ignored, while Del Marcelle was ticketed. (233) The village police told Del Marcelle they would not assist him because he was crazy. (234)

After Del Marcelle filed suit, the county defendants moved to dismiss. (235) The district court held that the complaint failed to state a claim under the Equal Protection Clause and dismissed the complaint as to the county defendants and the village defendants. (236) Del Marcelle appealed pro se and the Seventh Circuit panel affirmed. (237) The court reasoned that while Del Marcelle's complaint could be conceived as a "class-of-one" equal protection claim, it did not allege that the defendants' failure to protect him from harassment was borne from personal animosity toward him and therefore failed to state a cognizable claim. (238) Before publishing the decision, the panel circulated its proposed opinion to the full Seventh Circuit on the grounds that it would advance "a new approach to the standard of liability in class-of-one [claims]." (239) The full court decided sua sponte to hear the case en bane, with the hope that the circuit judges "might be able to agree on an improved standard for this difficult class of cases." (240) Instead, the panel split three ways. (241) Judge Posner, joined by three others, authored the lead opinion, with Judge Easterbrook writing separately concurring in the judgment. (242) Judge Wood, joined by four others, wrote a dissenting opinion. (243) The 4-1-4 split resulted in a tie vote, which served to affirm the dismissal of the suit. (244)

B. MAKING THE PRAGMATIST'S CASE FOR REINING IN THE CLASS-OF-ONE THEORY

Judge Posner begins from the premise that class-of-one litigation is problematic on its own terms. Class-of-one suits "are neither necessary to prevent serious injustices nor manageable; they are not compelled by the Equal Protection Clause or the case law interpreting it; they fill no yawning gap in the legal protection of Americans." (245) On the whole, class-of-one suits "are remote from the original target of the Equal Protection Clause--law enforcers who systematically withdraw protection from a group against which they are prejudiced." (246)

Like Chief Justice Roberts, Judge Posner starts the discussion of the classof-one claim with Olech, but he characterizes it somewhat differently. Chief Justice Roberts contended that "Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle." (247) For Posner, Olech was about more than mere arbitrary classification; it taught that "a state actor commits class-of-one discrimination only when he intends to discriminate in the sense of intending to treat a person differently from other persons for reasons of a personal character, that is, reasons not grounded in his public duties." (248) This was how the Seventh Circuit framed Olech in its opinion, but--to Posner's puzzlement, even irritation--the Supreme Court decision stated it in more general terms and with no limiting principle on what might constitute "irrational and arbitrary" conduct in other contexts. (249) The Court failed to recognize that class-of-one discrimination might "require a different level of consideration from other forms of discrimination challenged under the Equal Protection Clause," an insight that, according to Posner, "the Court was later to realize" in Engquist. (250)

After setting out a bill of particulars that show the relative marginality of the class-of-one theory, Posner tries to situate the specific factual averments in the pleading against the general understanding of what the class-of-one claim is for, i.e., what interests it vindicates and what purpose it serves. As compared to Olech, Del Marcelle's equal protection argument targets "governmental conduct that is unavoidably highly discretionary, and to a degree almost random[.]" (251) Accordingly, "irrational and arbitrary" are not operable standards for evaluating such conduct and a different template was necessary. Unsurprisingly, Posner advocates for the template he first helped originate in Olech and the sequence of subsequent decisions laying out the case for requiring an impermissible subjective motive element.

Though Posner might dispute its reading of Olech, he agrees with Engquist's basic premise that the nature of discretionary front-line decisions militates against unmediated recognition of the class-of-one claim. (252) He illustrates this point by way of example, offering three variations on the hypothetical of a police officer pulling over a driver for speeding, (253) a hypothetical in which an asylum officer treats an applicant differently from a previous applicant whom he knows was rationally indistinguishable, (254) and another hypothetical concerning random audits of taxpayers conducted by an IRS official. (255) The gradual accretion of both mundane and purposefully outlandish hypotheticals fulfills its intended function: demonstrating how the class-of-one cause of action, if taken to its logical extreme, yields "silly" results.

"Silliness," Posner remarks, is "not an operable standard," but he agrees that a standard under which "only egregious class-of-one cases should be actionable" is not operable either, inasmuch as it devolves into "a version of 'I know it when I see it.'" (256) As Posner puts it, "[t]he challenge is to find amidst the welter of trivial 'irrationalities' in discretionary actions by frontline public employees acts of discrimination of a character to warrant classification as denials of equal protection." (257) The complexity of the challenge, as compared to the limited payoff that it might confer even if substantially met, leads to the temptation "to throw up one's hands and banish challenges to police responses to complaints, and to other police investigatory decisions, from the class-of-one domain altogether, on the analogy of the Supreme Court's decision in Engquist v. Oregon Dep't of Agriculture."

Posner proceeds to quote liberally from Chief Justice Roberts's opinion, particularly those passages that demonstrate the "poor fit" of the class-of-one claim in the public employment context. (259) He emphasizes the points of commonality between the role of government in employment and in law enforcement, emphasizing that both involve the exercise of subjective discretion that often results in disparity, and both are subject to other laws and regulations that provide protection against misconduct. (260) He observes that the same dynamics are in play in sentencing and prosecutorial decisions, contending that "[t]here would be chaos" if the class-of-one claim was used to challenge a decision to press charges or as grounds to challenge a specific sentence. (261)

Posner essentially agrees with the discursive reasoning Chief Justice Roberts employed to justify excluding the class-of-one cause of action in Engquist. But the lessons he draws from Engquist come in its analysis of the problem, which he proceeds to restate in terms that are amenable to his overarching doctrinal project. In other words, Posner attempts to respond to Roberts rhetorically, i.e., by assimilating the underlying reasons for limiting the class-of-one theory and inflecting them in pragmatist terms. Instead of distinguishing Engquist or attempting to undermine its formalist orientation, Posner emphasizes certain components of Roberts's opinion that are congenial to his own approach. In the process of explaining what Engquist says about the class-of-one claim, he attempts to transform what it signifies in the class-of-one doctrine.

Posner's diagnosis of the dilemma discards much of the more abstract conceptualism at work in Engquist and instead emphasizes its practical upshot:

   [w]hat unites the public-employer, prosecutorial discretion, and
   sentencing discretion cases at the deepest level of policy is not
   the existence of alternative remedies or the absence of harmful
   discrimination. It is the impediment to efficiency in government
   that would be created by allowing class-of-one litigation in areas
   in which frontline public officers--whether supervisors and other
   management-level personnel in public agencies, or prosecutors, or
   trial judges--exercise discretionary authority guided unavoidably
   by subjective, individualized factors that are bound to create
   disparate treatment. Class-of-one liability in such circumstances
   would not eliminate the disparities, because they are inherent in
   the exercise of discretion in such activities, but would foment
   litigation and disrupt law enforcement; some injustices would be
   corrected, but at an unacceptable price. (262)

This passage frames the significance of Engquist in terms that de-emphasize its formalist register and gives full voice to its practical register. In Posner's telling, Engquist succeeds in articulating reasons why limiting the class-of-one claim is justifiable, even necessary, as a matter of policy, but fails in attempting to state some essential truth about discretionary decision-making and trying to build doctrine around that claim. Engquist shows why limits are necessary, but it offers only a provisional answer as to what form those limits might take.

For Posner, the class-of-one claim is not per se conceptually incompatible with discretionary decision-making. Rather, permitting the class-of-one claim is undesirable as a matter of policy. This is not to say that Posner eschews formalist analysis altogether. He recognizes the common ground among public employer, sentencing, and prosecutorial discretion cases, and accepts that excluding class-of-one claims in these contexts may be normatively desirable. But the most meaningful normative criterion, for Posner, comes from matching the legal doctrine to the circumstances on the ground, rather than constructing doctrine based on abstract conceptual theorizing regarding the "essential" properties of subjective discretionary authority. In other words, finding a persuasive rationale to limit the class-of-one claim does not require logical analysis or legal reasoning from above, but comes instead from the conscious weighing of costs and benefits through empirically informed analysis.

Posner engages in balancing, but it is a balancing of likely systemic consequences of accepting one legal arrangement as opposed to another. He weighs "impediment to efficiency in government" against the potentiality that "some injustices would be corrected," presuming that disparities in treatment would not be eliminated because they are built-in features of the three social activities in question. (263) Practical policy concerns, not theoretical principles, are the most persuasive grounds for limiting the class-of-one claim, which, as we will see, feeds back into Posner's conception of what form the limit should take.

This portion of Del Marcelle evokes the frank, consequence-oriented analysis of legal pragmatism for which Posner advocates. (264) The above passage recalls a small but suggestive biographical detail that appeared in a magazine profile of Posner back in 2001. The author described the second-floor study of Posner's home and noted that:

   [o]n the top of one of his bookshelves stands a plywood scale that
   the economist George Stigler made and gave to him [in 1981], when
   Posner became a judge: in one pan of the scale is a small wooden
   block labeled "Justice;" in the other pan is a larger, heavier
   block labeled "Efficiency." (265)

This small emblem might suggest that Posner would search for the most efficient way of dealing with the class-of-one claim and look exclusively for the result that would have the best overall consequences, so far as the judge could tell. Indeed, that is one of the most persistent criticisms of his method--that it permits the unchecked exercise of judicial discretion and is unreservedly consequentialist in deciding individual cases, which leads to short-sighted and doctrinally inconsistent results. (266) Posner suggests that this criticism is "a canard" and that legal pragmatism, properly conceived, is as concerned with "effects on such systemic values as continuity, predictability, and stability of legal rules and decisions." (267)

If Posner was truly willing to prize efficiency above all else, he would presumably be tempted to take Engquist to its logical conclusion: to permit a class-of-one claim only where a public official has deviated from some clearly ascertainable standard for no conceivable reason. Posner notes the temptation to exclude per se all class-of-one claims from the law enforcement context, but declines to succumb to it. That a limitation is justified to promote efficiency in government and to avoid "silly" results does not mean, in Posner's view, that the limitation should be stated in absolute terms.

C. ENCODING AN INTERNAL CONTINGENT CHECK (AS AGAINST AN EXTERNAL CATEGORICAL BAR)

Part III.B emphasizes the ways in which the impermissible subjective purpose element functions to organize the class-of-one analysis from within. Del Marcelle is a culmination of this position. As compared to Engquist, Posner's mode of analysis both lowers the stakes and widens the field of the class-of-one claim. Engquist's mode of analysis implicates basic questions about the function of judicial review and the extent to which public officials may be held accountable for the downstream effects of their decisions. It sets class-of-one theory apart from traditional group-based equal protection doctrine. By contrast, the position advanced by Posner would establish a tenuous bridge between class-of-one litigation and traditional equal protection doctrine.

In Del Marcelle, Posner and his colleagues proposed what he deemed "a simple standard." (268) To state a prima facie class-of-one claim, a plaintiff would

   be required to show that he was the victim of discrimination
   intentionally visited on him by state actors who knew or should
   have known that they had no justification, based on their public
   duties, for singling him out for unfavorable treatment--who acted
   in other words for personal reasons, with discriminatory intent and
   effect. (269)

This standard augments, rather than supplants, rational basis review, such that a plaintiff "must plead and prove both the absence of a rational basis for the defendant's action and some improper personal motive (which need not be hostility, but could be, for example, corruption) for the differential treatment." (270) This mode of class-of-one analysis is distinct from straight rational basis review used, for example, to assess a challenge to a legislative act or ordinance alleging discrimination against a class of citizens. Judge Easterbrook, in his concurrence, finds no basis in Olech or Engquist for what he calls this "rational-basis-plus intent approach." (271) All the same, Posner deems it necessary to differentiate legitimate from illegitimate actions, in accordance with the "rational basis with bite" line of authority holding that classifications borne solely from animus toward a particular group are illegitimate and constitutionally offensive under the Equal Protection Clause. (272)

The majority's standard does not place an affirmative duty on public officials to be able to justify or give reasons for their actions, in part because the "[i]nability to articulate a rationally acceptable reason for the difference is not a meaningful way to identify intentional discrimination." (273) It is not meaningful because of the high probability that it would implicate incidents of inadvertence, thoughtlessness, oversight, or simple incompetence. Such incidents may be regrettable uses of discretionary authority but are not constitutionally offensive unto themselves. The scope of actionable claims under this standard is consistent with the scope of qualified immunity, which "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." (274) Thus, the intent element would likely also function as a shorthand means of determining whether qualified immunity is available as a defense to suit.

Posner also assesses the "fit" of this standard against standing precedent involving class-of-one claims in the law enforcement context. He reviews two Seventh Circuit class-of-one cases, one that was dismissed (275) and one that stated a claim. (276) In Hilton v. City of Wheeling, (277) the plaintiff alleged that police had enforced the law one-sidedly in responding to complaints that he made in response to an escalating feud with a neighbor. (278) The disparity in treatment was deemed insufficient to state a claim because the plaintiff did not also allege that the disparity was improperly motivated or borne from animus.

On the other hand, consider Geinosky v. City of Chicago, (279) which Posner claimed "makes a nice contrast to [Del Marcelle]." (280) In Geinosky, the plaintiff sued the police department and eight officers after receiving twenty four parking tickets over a fourteen-month period. All the tickets arrived by mail "in batches of three or four" and were written by officers of the same unit of the Chicago Police Department. (281) Some tickets were given at the same time and were inconsistent with each other, i.e., suggesting that plaintiffs car "was in two places almost at once or was simultaneously double-parked and parked on the sidewalk." (282) The Seventh Circuit panel reversed the district court's dismissal for failure to state a claim, concluding that "the pattern adds up to deliberate and unjustified official harassment that is actionable under the Equal Protection Clause of the Fourteenth Amendment." (283) Its reasoning is clothed in the language of everyday pragmatism:

   [r]eason and common sense provide no answer to why he was targeted
   that could be considered a legitimate exercise of police
   discretion. Somewhere between the first several and the
   twenty-fourth bogus tickets from officers of the same police unit,
   Geinosky's grievance rose to the level of an actionable
   class-of-one discrimination claim. (284)

Posner's gloss on the case: because "[t]he defendants intentionally subjected the plaintiff to harm that they knew had no legal justification[,]" the claim "should survive the concerns expressed in Engquist." (285)

Posner adopts a more restrictive approach than the dissent by Judge Wood, who argues that "the other factors that have crept their way into our class-of-one cases--personal animus, illegitimate motives, inexplicable deviations from clear rules--are not primary rules" and should not be accorded that function. (286) Posner considers but rejects the dissent's attempt to harmonize the "diverse strains" of the class-of-one theory, contending that it "falls short" in tightening up the applicable pleading standard and enlarges, rather than narrows, the field of inquiry. (287) Though Judge Wood has made use of the subjective impermissible intent standard to uphold a class-of-one claim in the law enforcement context, (288) she parts ways with Posner's approach to the extent that it would require proof of such an element when the claim challenges a subjective, discretionary decision.

The impermissible subjective purpose element is doctrinal bracing against two countervailing forces: an overly broad categorical bar on class-of-one claims that would prevent meritorious actions from going forward and an overly permissive recognition of class-of-one claims that would permit meritless actions to go forward. Posner's scheme leaves room for the exceptional case, for "the proverbial needle in a haystack" that strikes at the core concerns of the Equal Protection Clause. This, too, is justifiable in policy terms: it is undesirable to permit public officials to exercise discretionary authority with impunity. Yet, as he makes clear, the subjective impermissible intent motive is also designed to shrink the potential reach of class-of-one litigation. Posner believes that encoding the intent motive in the class-of-one cause of action will quell the potential for making constitutional claims out of the inevitable shortcomings of public officials.

The basic contours of Posner's rationale are meant to strike a balance between permitting claims that appear to be gratuitous abuses of power and shutting down claims that are more likely examples of innocent or unknowing incompetence. This approach recognizes that the Equal Protection Clause is intended to prevent citizens from arbitrary or purposeful abuses of power, but declines to treat it as an all-purpose tool to sanitize the civic arena of disparate results that are inevitable consequences of discretionary decision-making. He has held fast to the idea, which he first stated almost 30 years ago, that expectations of what government can confer should be realistic. "The Constitution," he contends, "does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. Otherwise few speeders would have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this country." (289) To Posner, the lesson to draw from the analogy is that "selective, incomplete enforcement of the law" is a given, i.e., a non-negotiable practical fact. It should be recognized for what it is, not transformed into an occasion to call all discretionary authority into question. "Prussian thoroughness" and exactitude are not predicates that must be satisfied before discretionary authority may be exercised.

But that does not imply the converse, either. Posner does not suggest that the cost of granting discretion to public officials means accepting the consequences of that discretion no matter how or why it is being deployed. Under Posner's approach, the inevitability of disparate results is not seen as a reason to foreclose class-of-one analysis, an idea that gets floated in Engquist. Rather, disparate treatment among similarly situated people is deemed necessary, but not sufficient, proof of a class-of-one claim. Posner leaves room for a valid equal protection claim, so long as the claimant can establish that the disparate result was not incidental to the exercise of authority, but was instead the reason why authority was exercised in the way that it was: to single out the person on whom it fell for reasons unrelated to the office or duties it entails.

VI. CONCLUSION: TWO PATHS FOR THE CLASS-OF-ONE THEORY, TWO ROLES FOR JUDGES

Del Marcelle suggests that the dicta in Engquist should be taken seriously as an account of the challenges that the class-of-one theory poses, but need not be taken seriously as the last word on how those challenges should be met. Of course, that may change if the Supreme Court decides to hear another class-of-one case that concerns discretionary decision-making. Engquist has no binding force beyond the public employment context, but its open-ended dicta invites expansion to other contexts in which class-of-one litigation will likely arise.

The categorical mode of analysis that Roberts introduced into the class-of-one doctrine would shrink the domain of civic life in which the class-of-one claim has constitutional salience. It also cultivates a deferential posture that avoids inquiring into the subjective motives of public officials. Instead, the approach inaugurated in Engquist looks to whether the action complained of involved a deviation from a known rule or the exercise of discretion. This approach sets a high constitutional threshold that insulates discretionary decisions from fact-intensive inquiries that might otherwise result. To a corresponding degree, it limits the role that the courts and juries will play in calling public officials to account for uses (and abuses) of the discretion their office affords.

Posner's approach permits inquiry into subjective motives of public officials and requires a high factual threshold under which a certain motive must be pleaded and proved in order to state a facially valid claim. This approach cuts down on the volume of actionable class-of-one claims, but also assures that citizens who are targeted for illegitimate reasons will have a constitutional remedy. Posner's scheme evidences a different form of judicial modesty, one that declines to settle a constitutional question for all time and instead permits the doctrine to be developed based on adjudication of specific cases in specific factual contexts.

(1.) Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the Comm. on the Judiciary United States Senate, 109th Cong. 55 (2005).

(2.) Id. For an engaging essay on the shortcomings of this analogy, see Aaron S.J. Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010), available at http://yalelawjournal.org/2010/03/03/zelinsky.html.

(3.) See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). For Scalia, being beholden to rules assures predictability and cabins the discretion of lower courts. See id. For any given case, he is as concerned with the mode of analysis as the particular outcome, and he avows that "a bad rule is better than no rule at all." Id. at 1177, 1179. As Scalia recognizes, his emphasis on rules-oriented jurisprudence is but one strategy among many available to guide judicial practice. See id. at 1186-87. See also Kathleen M. Sullivan, The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992); J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence, 58 Stan. L. Rev. 1969, 1986-95 (2006) (describing the perils of split-the-difference jurisprudence).

(4.) For instance, consider the comments of John Cornyn, a Senator from Texas who sat on the Senate Judiciary Committee, concerning then-nominee Sonia Sotamayor in anticipation of her confirmation hearings: "'She certainly has a distinguished career.... The real question is how she views her role as a judge: whether it is to advance causes or groups or whether it is to call balls and strikes.'" Bruce Weber, The Deciders: Umpires v. Judges, N.Y. TIMES, July 12, 2009, http://www.nytimes.com/2009/07/12/weekinreview/12weber.html?pagewanted=all&_r=0.

(5.) See Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 CAL L. REV. 519, 520-21 (2012) [hereinafter Posner, Judicial Self-Restraint] (beginning with the premise that "[t]he term 'judicial self-restraint' is a chameleon" and exploring internal contradictions between various definitions of restraint).

(6.) Linda Greenhouse, Even in Agreement, Scalia Puts Roberts to Lash, N.Y.TIMES, June 28, 2007, http://www.nytimes.com/2007/06/28/washington/28memo.html?_r=0; see Fed. Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 498 n.7 (2007) (Scalia, J., dissenting) ("This faux judicial restraint is judicial obfuscation."). This criticism implies that judicial modesty should be abandoned in situations where it upholds or preserves indefensible doctrine. Of course, if the individual judge can pick and choose when judicial modesty is and is not called for, then the criteria by which he may do so appears less like binding rules, and more like rules of thumb whose application is context-specific.

(7.) The most prominent constitutional opinion comes in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), in which Roberts concluded that the individual mandate of the Patient Protection and Affordable Care Act could not be justified as an exercise of Congress's power under the Commerce Clause, but could be justified as an exercise of Congress's power to tax. Id. at 2585, 2600. It is likely that any reading of Roberts's judicial philosophy going forward will need to account for the gravitational pull that this opinion exerts on constitutional law and on his reputation, and rightly so. But here too the trope of umpiring has already become an evaluative term, albeit a facile one whose meaning is far from stable. Compare Rich Lowry, The Umpire Blinks, NATIONAL REVIEW, June 29, 2012 available at http://www.nationalreview.com/articles/304374/umpire-blinks-rich-lowry (contending that "Roberts effectively rewrote the constitutionally problematic portions of [the Act]" and that "[t]he umpire called a balk, but gave the pitcher a do-over"), with Ezra Klein, The Political Genius o f John Roberts, WASHINGTON POST, June 28, 2012, http://www.washingtonpost.com/blogs/wonkblog/ wp/2012/06/28/the-political-genius-of-john-roberts ("It's as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side").

(8.) RICHARD A. POSNER, HOW JUDGES THINK 15 (2008).

(9.) Id. at 372.

(10.) RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 353 (2003).

(11.) See, e.g., id.; RICHARD A. POSNER, THE CRISIS OF CAPITALIST DEMOCRACY (2010); RICHARD A. POSNER, HOW JUDGES THINK (2008); RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006); RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001); RICHARD A. POSNER, FRONTIERS OF LEGAL THEORY (2001); PUBLIC INTELLECTUALS: A STUDY OF DECLINE (2001); RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999). For a comprehensive view of Posner's prolific output on this and other subjects, see THE UNIVERSITY OF CHICAGO LAW SCHOOL, Richard A. Posner: Publications, http://www.law.uchicago.edu/node/79/publications (last visited Feb. 9, 2013).

(12.) See Richard A. Posner, A Lawyer's Dozen, THE NEW REPUBLIC, Nov. 8, 2012, at 36 (reviewing AKHIL REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY (2012)); Richard A. Posner, The Spirit Killeth, But the Letter Giveth Life, THE NEW REPUBLIC, Sept. 13, 2012, at 18 (reviewing ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012)); Richard A. Posner, What Am I? A Potted Plant?, THE NEW REPUBLIC, September 28, 1987, at 23.

(13.) POSNER, supra note 10, at 57 (quoting OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881)).

(14.) For his most recent distillation of legal pragmatism, see Posner, Judicial Self-Restraint, supra note 5, at 538-46. This outlook is more fully worked out in POSNER, supra note 10, at 59-85. See also Richard A. Posner, HOW JUDGES THINK (2008); Richard A. Posner, FRONTIERS OF LEGAL THEORY (2001); Richard A. Posner, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999).

(15.) RICHARD A. POSNER, A Pragmatist Manifesto, in THE PROBLEMS OF JURISPRUDENCE 454, 454 (1990) [hereinafter POSNER, A Pragmatist Manifesto].

(16.) Posner, Judicial Self-Restraint, supra note 5, at 539.

(17.) See POSNER, A Pragmatist Manifesto, supra note 15, at 455 (emphasis omitted).

(18.) "Ideology" is freighted with significant rhetorical baggage, so Posner's point can sometimes sound more contentious than it need be. A more milquetoast description of his point might run as follows: Doctrinal tools serve different functions at different historical periods. Rules and standards are both capable of being put to a more conservative or more liberal purpose, depending on the context and whatever doctrinal view is entrenched at the time. See generally Sullivan, supra note 3, at 99.

   [N]o strong substantive political theory of rules and standards is
   plausible; neither rules nor standards correspond systematically
   with the left or the right. It depends on who has the upper hand
   and what form theft directives take. A weak substantive prediction
   may be ventured, though: in constitutional choices along any
   ideological spectrum between two poles, the poles will attract
   rules. Either standards or rules can be used to dive for the
   middle. But standards cannot be used to realize either extreme pole.

Id.

(19.) POSNER, A Pragmatist Manifesto, supra note 15, at 454.

(20.) Posner, Judicial Self-Restraint, supra note 5, at 536-37 (quoting HARVIE WILKINSON, III, COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE 1 (2012)).

(21.) Id. at 542.

(22.) Id.

(23.) POSNER, supra note 10, at 3. Posner gives a "brutally brief summary" of legal pragmatism as follows:

   [L]egal pragmatism is not concerned just with immediate
   consequences, is not a form of consequentialism, is not hostile to
   social science, is not Hartian positivism, is not legal realism, is
   not critical legal studies, is not unprincipled, and does not
   reject the rule of law. It is resolutely antiformalist, it denies
   that legal reasoning differs importantly from ordinary practical
   reasoning, it favors narrow over broad grounds of decision at the
   outset of the development of an area of law, it is friendly to
   rhetoric and unfriendly to moral theory, it is empirical, it is
   historicist but recognizes no "duty" to the past, it distrusts
   exception-less legal rules, and it doubts that judges can do better
   in difficult cases than to reach reasonable (as distinct from
   demonstrably correct) results.

Id. at 84-85.

(24.) Gary Shapiro, Remembering Sidney Morgenbesser, N.Y. SUN, Aug. 3, 2004, at 14. Though I am sure variations on this anecdote have appeared elsewhere, I first encountered it in this obituary of Sidney Morgenbesser, a philosopher at Columbia University. The anecdote acknowledges three different philosophical-jurisprudential outlooks, the particulars of which have occasioned considerable discussion in the legal academy and in philosophy generally. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 114-75 (1986); Owen M. Fiss, Conventionalism, 58 S. CAL. L. REV. 177 (1985).

(25.) Judge Jeffrey Sutton, Circuit Judge, United States Court of Appeals for the Sixth Circuit, and Dean David Levi, of Duke Law School and formerly United States District Court for the Eastern District of California, are two reviewers who take issue with the portrait of judges and judicial thinking that Posner draws in his book. See generally Jeffrey S. Sutton, A Review of Richard A. Posner, How Judges Think (2008), 108 MICH. L. REV. 859 (2010) (book review) (contending that Posner overstates the case for the "political" nature of judging, doubting that pragmatism is a viable contender as a description of how judges do or should resolve indeterminate questions, and identifying external and internal constraints on judicial decision-making, the effect of which, he argues, Posner does not adequately account for); David F. Levi, Autocrat of the Armchair, 58 DUKE L. J. 1791, 1792-94 (2009) (reviewing RICHARD A. POSNER, HOW JUDGES THINK (2008)) (Posner's "generalizations about the ways of the judge and the world are ex cathedra pronouncements that generally lack any identified objective support outside of his own experience and belief. For many of his assertions, it would appear that his dataset of judges is a set of one--himself.").

(26.) H.L.A. Hart's discussion of the "problems of the penumbra" helps to flesh out the relevance of the strike zone to discussion of legal analysis. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958). Hart sought to differentiate application of a rule in the standard case, i.e., "the standard instance in which no doubts are felt about its application" from "a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out." Id. Hart's discussion was pitched at the level of resolving a particular application of a statutory rule by filling in "gaps" of interpretive space that are left open by that rule. The extent of the disagreement over how to proceed intensifies when the issue at stake involves constitutional doctrine, where the notion of "gaps" of interpretive space may have application but the emphasis on statutory construction as a source of legal uncertainty far less so. For a discussion of the limits of Hart's analysis as to the nature and potential sources of legal uncertainty, see POSNER, supra note 10, at 80-82.

(27.) See POSNER, A Pragmatist Manifesto, supra note 15.

(28.) RICHARD A. POSNER, HOW JUDGES THINK 287-88 (2008).

(29.) Posner, Judicial Self-Restraint, supra note 5, at 539.

   But can judges decide a case without a theory of how to decide it
   correctly? They can--in fact they must, because when faced with a
   case that is indeterminate from the standpoint of conventional
   legal reasoning they cannot throw up their hands and say, "I can't
   decide this case because I don't know what the right answer to the
   question presented by it is." They have to decide it, using
   whatever tools are at hand.

Id. This recalls the response that then-nominee Byron "Whizzer" White gave when asked by a journalist what the constitutional role of the Supreme Court was: "[t]o decide cases." DENNIS HUTCHINSON, THE MAN WHO ONCE WAS WHIZZER WHITE 331 (1998).

(30.) This is the normative upshot of Justice Scalia's preference for rules: he contends that "It]here are times when even a bad rule is better than no rule at all." See Scalia, supra note 3, at 1179. He believes this is particularly true in the case of Supreme Court decisions. Whatever the quality of the rule, the fact that a rule exists assures predictability and curtails discretion to decide individual cases based on the specific facts they present. Id. at 1179-80; see also Sullivan, supra note 3, at 82-83 (suggesting that Scalia's favoritism for rules is his primary jurisprudential quest and that "his commitment to textualism, originalism, and historical positivism is contingent and secondary").

(31.) Justice Scalia puts the point nicely:

   In a judicial system such as ours, in which judges are bound, not
   only by the text of code or Constitution, but also by the prior
   decisions of superior courts, and even by the prior decisions of
   their own court, courts have the capacity to "make" law. Let us not
   quibble about the theoretical scope of a "holding"; the modem
   reality, at least, is that when the Supreme Court of the federal
   system, or of one of the state systems, decides a case, not merely
   the outcome of that decision, but the mode of analysis that it
   applies will thereafter be followed by the lower courts within that
   system, and even by that supreme court itself. And by making the
   mode of analysis relatively principled or relatively fact-specific,
   the courts can either establish general rules or leave ample
   discretion for the future.

Scalia, supra note 3, at 1176-77.

(32.) Sullivan, supra note 3, at 57.

(33.) 528 U.S. 562. The plaintiffs in Olech wanted the Village to connect their home to the municipal water system; the Village agreed on the condition that they grant a 33-foot easement, rather than the customary 15-foot easement, in order that it might widen a road adjacent to the plaintiffs' property. Id. at 563. The plaintiffs alleged that the Village imposed a greater easement out of ill-will, animus, or retribution, because of a previous suit they had flied against the Village. Id.

(34.) Id. at 564.

(35.) Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1043 (10th Cir. 2007) (McConnell, J., concurring in part and dissenting in part).

(36.) 553 U.S. 591. Engquist is a rare case in which a jury found the government liable on a class-of-one theory and awarded a money judgment. The Ninth Circuit reversed, concluding that the government could not be liable on a class-of-one theory in the employment context. The Roberts-led majority upheld that result and amplified the underlying rationale. See Part IV.A.

(37.) Engquist, 553 U.S. at 594 (holding that a claim based on "a 'class-of-one' theory of equal protection has no place in the public employment context").

(38.) See, e.g., Robert C. Farrell, The Equal Protection Class of One Claim: Olech, Engquist, and the Supreme Court's Misadventure, 61 S.C.L. REV. 107 (2009); William D. Araiza, Constitutional Rules and Institutional Roles: The Fate of the Equal Protection Class of One and What It Means for Congressional Power to Enforce Constitutional Rights, 62 SMU L. REV. 27 (2009) [hereinafter Araiza, Constitutional Rules]; William D. Araiza, Irrationality and Animus in Class-of-One Equal Protection Cases, 34 ECOLOGY L.Q. 493 (2007); see also Joseph Cole, Comment, The Almighty Discretionary Power of State Officials Trumps the Equal Protection Clause?, 41 U. TOL. L. REV. 669 (2010); Darien Shanske, Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta, 61 HASTINGS L.J. 969 (2010); Matthew C. Juneau, Comment, Surgery or Butchery? Engquist v. Oregon, Class-of-One Equal Protection, and the Shift to Categorical Treatment of Public Employees' Constitutional Claims, 70 LA. L. REV. 313 (2009); Ryan Keith Meyer, Comment, The United States Supreme Court Eliminates the "Class-of-One" Equal Protection Claim in Public Employment, 48 WASHBURN L.J. 529 (2009); Kerstin Miller, Note, Engquist v. Oregon Department of Agriculture: No Harm Meant? The Vanquished Requirement of Ill-Will in Class-of-One Equal Protection Claims and the Erosion of Public Employees' Constitutional Rights, 68 MD. L. REV. 915 (2009); Matthew M. Morrison, Comment, Class Dismissed: Equal Protection, the "Class-of-One," and Employment Discrimination After Engquist v. Oregon Department of Agriculture, 80 U. COLO. L. REV. 839 (2009).

(39.) Engquist, 553 U.S. at 603-04.

(40.) Compare, e.g., Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (rejecting death row prisoners' class-of-one challenge to Arizona's lethal injection protocol and reasoning that decisions on matters "such as which drug protocol to use, which people to select for the execution team, and whether to use a central femoral IV" are by statute relegated to discretion of the Director of Prisons, with no requirement of uniformity); Flowers v. City of Minneapolis, 558 F.3d 794, 799-800 (8th Cir. 2009) (concluding that class-of-one claim against police officers based on "directed patrol" of plaintiff's residence made for a "poor fit" and noting that "while a police officer's investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim"); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir. 2008) ("We have little trouble applying the reasoning in Engquist, directed at a the [sic] government-employee relationship, to the circumstances in this ease involving a government-contractor relationship."); with, e.g., Mathers v. Wright, 636 F.3d 396, 400-01 (8th Cir. 2011) (concluding that allegations of teacher's intentional misconduct stated class-of-one claim because conduct in question "exceeded the scope of professionally acceptable choices and was not discretionary"); Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 141-43 (2d Cir. 2010) (acknowledging the split circuit and declining to extend Engquist to limited discretion exercised pursuant to state's sovereign regulatory power); Franks v. Rubitsehun, 312 F. App'x 764, 766 n.3 (6th Cir. 2009) (declining to apply Engquist to denial of parole); Hanes v. Zurich 578 F.3d 491, 495 (7th Cir. 2009) (declining to apply Engquist to police discretionary conduct, reasoning that police officers, "in contrast to public employers, exercise the government's sovereign power" and have less discretion than government employers). See generally Farrell, supra note 38, at 130-38 (discussing cases from lower courts that have adopted Engquist's rationale and applied it in other contexts).

(41.) See Vill. of Willowbrook v. Olech, 160 F.3d 386 (7th Cir. 1998) (reversing district court's dismissal of claim and concluding that the allegation--that the Village had demanded greater easement from plaintiff than from other similarly situated homeowners because of ill-will or animus--stated a claim under the Equal Protection Clause).

(42.) See, e.g., SBT Holdings, LLC v. Town of Westminster, 547 F.3d 28, 34 (1st Cir. 2008).

(43.) See, e.g., Lindquist v. City of Pasadena, 525 F.3d 383, 387 n.2 (5th Cir. 2008); Bryan v. City of Madison, 213 F.3d 267, 276-77 and n.17 (5th Cir. 2000).

(44.) See, e.g., Lazy Y Ranch, Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008).

(45.) See, e.g., Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 849 (10th Cir. 2005).

(46.) See, e.g., Williams v. Pryor, 240 F.3d 944, 951 (11th Cir. 2001).

(47.) Judge Posner cites the above-referenced eases, supra notes 42-46, in his opinion in Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012).

(48.) See, e.g., SECSYS, LLC v. Vigil, 666 F.3d 678, 689 (10th Cir. 2012) ("No proof of an exploitative or vicious motive (further intent) is required.... [Olech's] rule is focused on rooting out 'intentional' discrimination and does not require inquiry into the defendant's 'subjective motivation[s]' or further intentions."); Gerhart v. Lake Cnty., 637 F.3d 1013, 1022 (9th Cir. 2011) ("Although [plaintiff] must show that the Commissioners' decision was intentional, he need not show that the Commissioners were motivated by subjective ill will."); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008) ("[After Olech,] allegations of irrational and wholly arbitrary treatment, even without allegations of improper subjective motive, were sufficient to state a claim for relief under equal protection analysis."); Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 n.3 (5th Cir. 2007) ("[The Fifth Circuit] has rejected the argument that all 'class of one' equal protection claims require a showing of vindictive animus."); Boone v. Spurgess, 385 F.3d 923,932 (6th Cir. 2004) (concluding that Olech "completely undercut" proposition that animus was an element of a viable class-of-one claim, which required only that a plaintiff "demonstrate that an actor had no reason at all--that the action had no rational basis"); McWaters v. Cosby, 54 F. App'x 379, 382-83 (4th Cir. 2002) (concluding that "irrationality allegation was separate from the actual subjective motivation" of the actor); Jackson v. Burke, 256 F.3d 93, 97 (2d Cir. 2001) ("To be sure, proof of subjective ill will is not an essential element of a 'class of one' equal protection claim."); Nevel v. Vill. of Schaumburg, 297 F.3d 673, 681 (7th Cir. 2002) (holding that plaintiff need show only that government action lacks rational basis); Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir. 2001).

(49.) 680 F.3d 887 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012).

(50.) Petition for Writ of Certiorari, Del Marcelle v. Brown Cnty. Corp., (No. 12-367), 2012 WL 4359246, cert. denied, 133 S.Ct. 654 (2012).

(51.) See Del Marcelle v. Brown Cnty. Corp., 133 S. Ct. 654 (Nov. 26, 2012).

(52.) U.S. CONST. amend. XIV, [section] 1.

(53.) See H.L.A. Hart, The Concept of Law 202 (1961). See also Scalia, supra note 3, at 1178. "The Equal Protection Clause epitomizes justice more than any other provision of the Constitution." Id. It is precisely that compulsion to do justice in the individual case that Justice Scalia finds to be dangerous to the uniformity, coherence, and ultimate legitimacy of judicial decisions.

(54.) Araiza, Constitutional Rules, supra note 38, at 38; see also Zeigler v. Jackson 638 F.2d 776, 779 (5th Cir. 1981) ("[T]he essence of the equal protection requirement is that the state treat all those similarly situated similarly.").

(55.) See Strauder v. West Virginia, 100 U.S. 303, 307 (1879) ("[T]he law in the States shall be the same for the black as for the white[.]"); Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing two property tax cases--Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441 (1923), and Allegheny Pittsburgh Coal Co. v. Comm'n of Webster Cnty., 488 U.S. 336 (1989)--as examples of past instances in which the class-of-one concept has been given effect by the Court).

(56.) See, e.g., Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Willowbrook v. Olech, 78 WASH. L. REV. 367 (2003); J. Michael McGuinness, The Impact of Village of Willowbrook v. Olech on Disparate Treatment Claims, 17 TOURO L. REV. 595 (2001); Timothy Zick, Angry White Males: The Equal Protection Clause and "Classes of One," 89 KY. L.J. 69 (2000); Shaun M. Gehan, Comment, With Malice Toward One: Malice and the Substantive Law in "Class of One" Equal Protection Claims in the Wake of Village of Willowbrook v. Olech, 54 ME. L. REV. 329 (2002); Nicole Richter, Note, A Standard for "Class of One" Claims Under the Equal Protection Clause of the Fourteenth Amendment: Protecting Victims of Non-Class Based Discrimination from Vindictive State Action, 35 VAL. U. L. REV. 197 (2000).

(57.) Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1043 (10th Cir. 2007) (McConnell, J., concurring in part and dissenting in part) (describing post-Olech case law as a "doctrinal morass").

(58.) Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (emphasis omitted).

(59.) Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).

(60.) City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).

(61.) See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967).

(62.) See, e.g., Oyama v. California, 332 U.S. 633, 644-46 (1948).

(63.) See, e.g., Graham v. Richardson, 403 U.S. 365, 372 (1971) (holding legislation that treated citizenship as criterion for welfare benefits eligibility was subject to heightened scrutiny). Federal alienage classifications are excepted from heightened scrutiny, see Mathews v. Diaz, 426 U.S. 67 (1976), as are state classifications based on alienage when basic governmental functions are implicated. See, e.g., Foley v. Connelie, 435 U.S. 291, 297 (1978).

(64.) See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (concluding that Virginia's all-male military school violated the Equal Protection Clause even if the state provided a parallel program for women and reasoning that gender-based discrimination subject to intermediate scrutiny must be defended with an "exceedingly persuasive justification" to pass constitutional muster under the Equal Protection Clause, which Virginia had failed to do).

(65.) The case law recognizes both "strict" and "intermediate" scrutiny, but the difference separating these two levels is in degree, not kind. The term "heightened scrutiny" is meant to cover both "strict" and "intermediate" scrutiny.

(66.) See Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 759 (2011) (describing rational basis review as the "residual category" of equal protection that will apply unless the law at issue involves a classification formally accorded heightened scrutiny).

(67.) See, e.g., Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (upholding use of race in affirmative action admissions policy under strict scrutiny); Nguyen v. INS, 533 U.S. 53, 73 (2001) (upholding sex-based classification in naturalization law under intermediate scrutiny).

(68.) See generally Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 370 (1999) (noting that "[b]etween the end of the Supreme Court's 1971 Term ... and the Court's 1996 decision in [Romer], the Court decided 110 cases in which it used minimal scrutinyl,]" in only ten of which the plaintiff prevailed).

(69.) Olech, 528 U.S. at 564.

(70.) See infra notes 140-143 and accompanying text.

(71.) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

(72.) See, e.g., Jennings v. City of Stillwater, 383 F.3d 1199, 1215-16 (10th Cir. 2004) (concluding that plaintiff had failed to supply any information regarding the allegedly similarly situated rape victims in suit alleging that detective denied her equal protection when he failed to investigate her alleged rape "with the same intensity and comprehensiveness"); Payne v. Huntington Union Free Sch. Dist., 219 F. Supp. 2d 273, 280 (E.D.N.Y. 2002) (concluding that the wife of school superintendent had failed to make out an equal protection claim against the school board because no other school district employee was comparable to the superintendent and thus the wife could not satisfy "similarly situated" element).

(73.) Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 680 (7th Cir. 2005) (internal citations and quotations omitted).

(74.) See, e.g., Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008) (explaining in class-of-one context, "the level of similarity ... must be extremely high" and the comparators' circumstances must be "prima facie identical"); see also Ruston v. Town Bd. for Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (endorsing "extremely high degree of similarity" standard).

(75.) 656 F.3d 1210 (10th Circuit 2011).

(76.) Asheroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

(77.) Kansas Penn Gaming, 656 F.3d at 1220 (concluding that plaintiff property owner had failed to do more than make a broad allegation in the form of a "formulaic recitation" that was not "supported by specific facts plausibly suggesting the conditions on the properties and the properties themselves are similar in all material respects").

(78.) 656 F.3d at 1218 (quoting Leib v. Hillsborough Cnty. Pub. Transp. Comm'n, 558 F.3d 1301, 1307 (11th Cir. 2009).

(79.) This degree of uncertainty is compounded by the fact that some circuits require that a plaintiff plead animus or improper subjective intent and others do not. This variation has been enlisted as an argument for the Supreme Court to step in and resolve the issue. The petition for certiorari of the Seventh Circuit's Del Marcelle decision contended that the "divergence in the class-of-one jurisprudence is currently resulting in the claims of similarly situated plaintiffs being evaluated under different standards that yield materially different outcomes." Petition for Writ of Certiorari at * 16, Del Marcelle v. Brown Cnty. Corp., (No. 12-367), 2012 WL 4359246, cert. denied, 133 S.Ct. 654 (2012).

(80.) Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004) ("Inevitably, the degree to which others are viewed as similarly situated depends substantially on the facts and context of the case.").

(81.) Araiza, Constitutional Rules, supra note 38, at 50-51.

(82.) Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal quotations and citations omitted).

(83.) That this task may run far afield of judicial competence partially explains Chief Justice Roberts's insistence that certain subjective, individuated decisions should not be actionable under a class-of-one theory. See infra Part IV.

(84.) LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, [section] 16-2, at 996 (1st ed. 1978).

(85.) Mass. Bd. of Ret, v. Murgia, 427 U.S. 307, 312 (1976) (per curiam).

(86.) FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993).

(87.) See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,487 (1955).

(88.) Beach Commc'ns, Inc., 508 U.S. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

(89.) Id. at 314 (citations omitted); see also Lee Optical, 348 U.S. at 487.

(90.) See infra Part III.A. (discussing the theory that judicial review of legislation is necessary to protect "discrete and insular minorities" and to assure the smooth functioning of the political process).

(91.) For the view that rational basis analysis in the class-of-one context poses no problem at all, see Judge Easterbrook's concurrence in Del Marcelle v. Brown County Corporation, 680 F.3d 887, 900-05 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012). Easterbrook identifies two potential rational bases for the defendant-police officers' treatment of the plaintiff: "[f]irst, they had limited enforcement resources and could not fully investigate all complaints. Second, defendants may have concluded that Del Marcelle was imagining or exaggerating the problems he reported." Id. at 900. Notably, the first rationale could be invoked in every law enforcement case, a point Easterbrook makes explicit at a later point in his concurrence by contending that Engquist "shows that discretionary decisions in law enforcement are not amenable to class-of-one analysis." Id. at 905 (citing and quoting Flowers v. Minneapolis, 558 F.3d 794, 799-800 (8th Cir. 2009) ("a police officer's investigative decisions ... may not be attacked in a class-of-one equal protection claim")).

(92.) This, at least, is the theory. Any sentient, somewhat civically engaged American living in the 21st century might take issue with this theory's application to how the process actually seems to work.

(93.) See supra notes 84-88 and accompanying text.

(94.) See Constitutional Rules, supra note 38, at 49-50 & n.144-46 (providing examples in which courts recognize the tension between applicable pleading standards and the presumption of rationality that attaches to governmental classifications).

(95.) See, e.g., Thomas v. Coopersmith, Civ. No. 11-7578, 2012 WL 3599415, at * 5 (E.D. Pa. Aug. 21, 2012) (slip copy) (concluding that plaintiff satisfied the substantive elements of class-of-one claim, including the absence of a rational basis, so as to survive defendant's motion to dismiss); Mathers v. Wright, 636 F.3d 396, 402 (8th Cir. 2011) (concluding that plaintiff-student had stated viable class-of-one claim and upholding denial of motion to dismiss); Weidow v. Scranton Sch. Dist., No. 3:08-CV-1978, 2009 WL 2588856 (M.D. Pa. Aug. 19, 2009) (unpublished) (denying defendant's motion to dismiss a class-of-one claim); Crowley v. McKinney, 400 F.3d 965 (7th Cir. 2005) (reversing district court's dismissal of 42 U.S.C. [section] 1983 claim by plaintiff, a non-custodial divorced parent, alleging class-of- one claim against principal and school district).

(96.) Judge Easterbrook appears to take this position. Del Marcelle, 680 F.3d at 900 ("[The rational basis] test asks whether a rational basis can be conceived, not whether one is established on the record or occurred to a defendant.").

(97.) See infra Part III.B.

(98.) Constitutional Rules, supra note 38, at 54 (noting that a requirement of animus or impermissible subjective purpose may assist plaintiffs inasmuch as "[d]irect proof of animus ... might give a court more confidence about concluding that the government action was performed for an illegitimate reason ... [and] might lead a court to pierce through the rational basis standard's extraordinary deference and rule for the plaintiff, even when the court could hypothesize a rational basis for the action.").

(99.) 426 U.S. 229 (1976).

(100.) Id. at 240.

(101.) David Straus, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 952 (1989). Straus highlights language from Village of Arlington Heights v. Metropolitan Housing Development Corp., which stated that, "[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Id. (quoting 429 U.S. 252, 265 (1977). Straus argues that the discriminatory intent standard is "not adequate as a comprehensive account of discrimination" and that its elevation as the sole, comprehensive standard of constitutionally offensive discrimination has impoverished equal protection law. Id. at 1014.

(102.) This formulation occasionally appears in the affirmative action line of cases, as in Justice O'Connor's recent formulation, "[w]e apply strict scrutiny to all racial classifications to '"smoke out" illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.'" Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)).

(103.) Pers. Adm'r v. Feeney, 442 U.S. 256, 258 (1979).

(104.) Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977). In operation, however, establishing that a discriminatory purpose was in fact a motivating factor in the decision has been considerably more difficult. As the Court in Feeney demonstrated, disparate treatment will not be deemed purposeful if deemed "an unavoidable consequence of a legislative policy that has in itself always been deemed to be legitimate...." Feeney, 442 U.S. at 279 n.25. Thus, the analysis of impermissible purpose begins from the premise that if disparate treatment can be explained as the result of legitimate policy, rather than discriminatory purpose, then it will be treated as such. This wrinkle, if that is what it should be called, tends to dull the force that heightened scrutiny might otherwise have. See Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 STAN. L. REV. 1105, 1115 (1989).

(105.) 413 U.S. 528 (1973).

(106.) 473 U.S. 432 (1985).

(107.) 517 U.S. 620 (1996).

(108.) As Andrew Koppelman observes, the Court has struck down three laws enacted by popular vote on the basis of impermissible purpose. See Andrew Koppelman, Romer v. Evans and Invidious Intent, 6 WM. & MARY BILL RTS. J., Winter 1997, at 89, 110. All three cases directly or tangentially implicated racial classification. See Reitman v. Mulkey, 387 U.S. 369 (1967) (striking down constitutional amendment that would prohibit state from impinging on owner's right to decline to sell, lease, or rent property as he chooses); Hunter v. Erickson, 393 U.S. 385, 387 (1969) (striking down amendment to city charter that required majority approval of any ordinance regulating real estate transactions "on the basis of race, color, religion, national origin or ancestry"); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (striking down amendment prohibiting mandatory school busing).

(109.) Moreno, 413 U.S. at 534. See also Romer, 571 U.S. at 634.

(110.) See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down city ordinances that were passed to suppress animal sacrifice, the central element of Santeria worship services); see also Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CALIF. L. REV. 297 (1997).

(111.) See id. See also Koppelman, supra note 108, at 107-10.

(112.) As Koppelman notes, Justice Kennedy wrote the majority opinion in Church of Lukumi Babalu Aye, but he was joined only by Justice Stevens in the section of his opinion that emphasized subjective intent of city officials. See Koppelman, supra note 108, at 110. This section of the opinion quoted statements from various Hialeah city officials that seemed to show direct hostility to the Santeria religion and that viewed it as a challenge to Christian principles. See Church of Lukumi Babalu Aye, 508 U.S. at 541-42.

(113.) See, e.g., Romer, 517 U.S. at 632. The majority in Romer explained that a challenged Colorado constitutional amendment, Amendment 2, "seems inexplicable by anything but animus toward the class it affects[.]" Id. Justice Scalia, in his dissent, argued that Amendment 2 "is not the manifestation of a 'bare ... desire to harm' homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." Id. at 636 (Scalia, J., dissenting).

(114.) See, e.g., Kathleen M. Sullivan, supra note 3, at 68. ("Civic republicanism conceives of lawmaking as reasoned dialogue ... about a common good rather than aggregation of competing private interests."); Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984) (identifying underlying constitutional principle justifying judicial invalidation of legislation, the principle purpose of which is to distribute resources or opportunities to one group and withhold them from another, simply as a function of raw political power).

(115.) See Sunstein, supra note 114.

(116.) See Louis Michael Seidman, Public Principle and Private Choice: The Uneasy Case for A Boundary Maintenance Theory of Constitutional Law, 96 YALE L. J. 1006, 1013-14 (1987) (citing authorities).

(117.) Id. See also United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (recognizing the disadvantages faced by "discrete and insular minorities" who are hindered or precluded from participating in the political process); Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L. J. 1287 (1982).

(118.) Many have doubted whether the judiciary should play any role in recognizing and protecting certain groups from the results of the political process. This view tends to doubt that neutral principles could be identified that would guide that process in a principled fashion. For instance, Justice Rehnquist was inveterately skeptical that this approach was either practically wise or constitutionally defensible. This skepticism is evident, for example, in his dissent in Sugarman v. Dougall, 413 U.S. 634, 657 (1973):

   Our society, consisting of over 200 million individuals of
   multitudinous origins, customs, tongues, beliefs, and cultures is,
   to say the least, diverse. It would hardly take extraordinary
   ingenuity for a lawyer to find 'insular and discrete' minorities at
   every turn in the road. Yet, unless the Court can precisely define
   and constitutionally justify both the terms and analysis it uses,
   these decisions today stand for the proposition that the Court can
   choose a 'minority' it 'feels' deserves 'solicitude' and thereafter
   prohibit the States from classifying that 'minority' different from
   the 'majority.' I cannot find, and the Court does not cite, any
   constitutional authority for such a 'ward of the Court' approach to
   equal protection.

Id. (Rehnquist, J., dissenting).

(119.) See JOHN HART ELY, ON CONSTITUTIONAL GROUND 362 (1996).

(120.) See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 145 (1980).

(121.) Id. (internal citations omitted).

(122.) See generally id.

(123.) See, e. g., Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir. 2004) (stating that courts deciding class-of-one claims should not transform into "general-purpose second-guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system").

(124.) City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

(125.) Personnel Adm'r, 442 U.S. at 279.

(126.) See Morrison, supra note 38, at 850-853 (discussing Judge Posner's opinions in Ciechon v. City of Chicago, 686 F.2d 511 (7th Cir. 1982), Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and Indiana State Teachers Ass'n. v. Bd of Sch. Comm'rs, 101 F.3d 1179 (7th Cir. 1996)).

(127.) Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (concluding that allegations that the Village's demand was "irrational and wholly arbitrary" sufficed to state a claim for relief and declining to reach "the alternative theory of 'subjective ill-will' relied on by [the Seventh Circuit]").

(128.) See Morrison, supra note 38, at 854-55 (discussing Posner's post-Olech decisions in Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000), Bell v. Duperrault, 367 F.3d 703 (7th Cir. 2004) (Posner, J., concurring), and Tuffensdam v. Dearborn Cnty. Bd. of Health, 385 F.3d 1124 (7th Cir. 2004)); see also Indiana Land Co., LLC v. City of Greenwood, 378 F.3d 705 (7th Cir. 2004).

(129.) Bell, 367 F.3d at 711 (Posner, J., concurring). Posner explained his belief that the movement to add the "impermissible purpose" element as an essential element was not blocked by Olech in the following terms:

   [A]ll the Supreme Court held was that to withstand a motion to
   dismiss, the plaintiff need allege only "irrational and wholly
   arbitrary" treatment. The Court did not explain what precisely the
   plaintiff must prove to satisfy this standard. It is not as if the
   term "irrational and wholly arbitrary" were self-defining. The fact
   that the Court declined Justice Breyer's invitation to put flesh on
   its skeletal test does not conclude analysis of what that flesh
   might look like. If the issue is open, the resolution of it
   proposed in Hilton and like cases is not foreclosed.

Id. at 711.

(130.) Tuffensdam, 385 F.3d at 1127.

(131.) POSNER, supra note 10, at 75.

(132.) Id.

(133.) Id.

(134.) Tuffensdam, 385 F.3d at 1127.

(135.) Id. (citing Pers. Adm'r v. Feeney, 442 U.S. 256 (1979)).

(136.) Crowley v. McKinney, 400 F.3d 965, 972 (7th Cir. 2005).

(137.) See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 892 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012) (Posner, J.) (explaining that larceny and the desire to find a scapegoat to avoid adverse publicity are two other reasons that have been recognized in the case law).

(138.) See Shanske, supra note 38, at 983-84 (discussing qualified immunity in class-of-one context after Engquist).

(139.) Id. (citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)).

(140.) See, e.g., Mathers v. Wright, 636 F.3d 396 (8th Cir. 2011) (concluding that plaintiff-student had stated viable class-of-one claim and upholding denial of motion to dismiss); Weidow v. Scranton Sch. Dist., No. 3:08-CV-1978, 2009 WL 2588856 (M.D. Pa. Aug. 19, 2009) (unpublished) (denying defendant's motion to dismiss a class-of-one claim in which a disabled student alleged that the school failed to forward her transcripts to colleges to which she had applied, as it did for all other students in her graduating class, and required that she acknowledge homebound-student status on her applications when no other homebound student was required to do so); Cohn v. New Paltz Cent. Sch. Dist., 171 F. App'x 877 (2d Cir. 2006) (concluding that plaintiff-student had stated a viable class-of-one claim and that Defendants' motion to dismiss on grounds of qualified immunity as a matter of law could not be determined at the pleading stage); Crowley, 400 F.3d at 965 (reversing district court's dismissal of 42 U.S.C. [section] 1983 claim by plaintiff, a non-custodial divorced parent, alleging class-of-one claim against principal and school district).

(141.) See, e.g., Thomas v. Coopersmith, Civ. No. 11-7578, 2012 WL 3599415 (E.D. Pa. Aug. 21, 2012) (slip copy) (concluding that plaintiff who alleged that police had displayed favoritism toward plaintiff's neighbor, with whom plaintiff had been in a longstanding dispute, had stated valid class-of-one claim, and that police chief who was allegedly personally involved in the favoritism was not entitled to qualified immunity, but dismissing Monell claim against the police department); Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012) (plaintiff who had received twenty-four "bogus" parking tickets had stated class-of-one claim against the city and eight officers); Hanes v. Zurick, 578 F.3d 491 (7th Cir. 2009) (concluding that allegation that officers had repeatedly arrested plaintiff for reasons of personal animus stated claim under a class-of-one theory).

(142.) See, e.g., Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010) (concluding that employees of health department did not violate equal protection rights of laboratory owners under class-of-one theory).

(143.) See, e.g., Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Circuit 2011) (rejecting class-of-one claim against county commissioners arising from nuisance enforcement action against plaintiffs property); Cruz v. Town of Cicero, 275 F.3d 579 (7th Cir. 2001) (affirming jury verdict awarded against town by plaintiff-owners of condominium conversion business alleging class-of-one claims involving town's certification of compliance with applicable building codes).

(144.) As the Tenth Circuit put it:

   the concept of a class-of-one equal protection claim could
   effectively provide a federal cause of action for review of almost
   every executive and administrative decision made by state actors.
   It is always possible for persons aggrieved by government action to
   allege, and almost always possible to produce evidence, that they
   were treated differently from others, with regard to everything
   from zoning to licensing to speeding to tax evaluation. It would
   become the task of federal courts and juries, then, to inquire into
   the grounds for differential treatment and to decide whether those
   grounds were sufficiently reasonable to satisfy equal protection
   review. This would constitute the federal courts as general-purpose
   second-guessers of the reasonableness of broad areas of state and
   local decisionmaking: a role that is both ill-suited to the federal
   courts and offensive to state and local autonomy in our federal
   system.

Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir. 2004).

(145.) Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

(146.) Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

(147.) Anderson v. Creighton, 483 U.S. 635, 640 (1987).

(148.) See Hunter v. Bryant, 502 U.S. 224, 227 (1991).

(149.) Id. at 229 ("The qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" (quoting Malley v. Briggs, 475 U.S. 335, 343 0986))).

(150.) Compare, e.g., Griffin Indus., Inc. v. Irvin, 496 F.3d 1189 (11th Cir. 2007) (concluding that various state and local officials were entitled to qualified immunity based on their role enforcing environmental regulations and were immune from suit on equal protection and conspiracy claims against them); Lunini v. Grayeb, 395 F.3d 761 (7th Cir. 2005) (police officers accused of violating equal protection rights of plaintiff for failing to arrest third-party who plaintiff accused of domestic violence were entitled to qualified immunity); with, e.g., Mathers v. Wright, 636 F.3d 396 (8th Cir. 2011) (concluding that teacher could not dismiss suit on grounds of qualified immunity because it was clearly established that school official could not subject student to intentional, disparate treatment when such conduct exceeded scope of acceptable discretion and stemmed from improper personal motivation); Hanes v. Zurick, 578 F.3d 491, 496 (7th Cir. 2009) (denying qualified immunity to police officers sued under a class-of-one theory and concluding that "[t]he officer motivated by malice alone is not exercising discretion and is not weighing the factors relevant to the officer's duties to the public"); Costa v. City of New York, 546 F.Supp.2d 117 (S.D.N.Y. 2008) (concluding that police chief alleged to have subjected a subordinate to campaign of harassment could not succeed on motion to dismiss on grounds of qualified immunity because facts were insufficient to establish that chief's actions were objectively reasonable); Cohn v. New Paltz Cent. Sch. Dist., 171 F. App'x 877 (2d Cir. 2006) (suspended student alleging class-of-one claim had stated viable claim and upholding the denial of qualified immunity to school official).

(151.) Bell v. Duperrault, 367 F.3d 703, 713 (7th Cir. 2004) (Posner, J., concurring).

(152.) Bell, 367 F.3d at 713 (Posner, J., concurring).

(153.) See, e.g., Farrell, supra note 38; Araiza, Constitutional Rules, supra note 38; Morrison, supra note 38.

(154.) Bell, 367 F.3d at 713 (Posner, J., concurring).

(155.) Engquist v. Or. Dept. of Agric., 553 U.S. 591, 605 (2008).

(156.) Engquist has engendered criticism both for this strict holding and for the rationale that underlies it. See generally H. Jefferson Powell, Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law, 86 WASH. L. REV. 217 (2011); Shanske, supra note 38 (arguing, among other things, that the expansive dicta is improper jurisprudential method, that the merits of the analysis fail on their terms, and that the consequence of permitting public officials to exercise discretion without having to give reasons and be accountable for their actions is contrary to the rule of law and bad public policy); see also Miller, supra note 38, at 915-16 (arguing that "[c]lass-of-one claims should not be completely excluded from public employment because no constitutional right has ever been completely excluded from the public employment context, and the Supreme Court has never allowed employers to subject public employees to unreasonable working conditions" and that "the requirement that plaintiffs prove ill-will is the key to a workable class-of-one claim in the public employment context"); Morrison, supra note 38, at 867, 870 (arguing, among other things, that "[t]he real-world imperatives that warrant a restriction of some constitutional rights in the public employment realm simply do not justify the elimination of the class-of-one equal protection rights of public employees" and that "by integrating an illegitimate animus requirement with the Supreme Court's formulation of the class-of-one in Olech, the Supreme Court in Engquist could have been assured that class-of-one causes of action would be limited to a small number of employees genuinely wronged by unequal, irrational, and malicious government conduct").

(157.) See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 at 896 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012) (Posner, J.). Judge Posner concluded that Roberts's dicta extended Engquist's "analysis (though not its holding) from public employees [sic] supervisors to the police." Id. Judge Easterbrook, in a concurring opinion, concluded that "[a]lthough [Engquist's] holding is limited to public employees, its rationale is not." Id. at 903. See also Farrell, supra note 38, at 128 ("In explaining its balancing of employee rights and government employer requirements, the Court enunciated a much broader principle

(154.) Bell, 367 F.3d at 713 (Posner, J., concurring).

(155.) Engquist v. Or. Dept. of Agric., 553 U.S. 591, 605 (2008).

(156.) Engquist has engendered criticism both for this strict holding and for the rationale that underlies it. See generally H. Jefferson Powell, Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law, 86 WASH. L. REV. 217 (2011); Shanske, supra note 38 (arguing, among other things, that the expansive dicta is improper jurisprudential method, that the merits of the analysis fail on their terms, and that the consequence of permitting public officials to exercise discretion without having to give reasons and be accountable for their actions is contrary to the rule of law and bad public policy); see also Miller, supra note 38, at 915-16 (arguing that "[c]lass-of-one claims should not be completely excluded from public employment because no constitutional right has ever been completely excluded from the public employment context, and the Supreme Court has never allowed employers to subject public employees to unreasonable working conditions" and that "the requirement that plaintiffs prove ill-will is the key to a workable class-of-one claim in the public employment context"); Morrison, supra note 38, at 867, 870 (arguing, among other things, that "[t]he real-world imperatives that warrant a restriction of some constitutional rights in the public employment realm simply do not justify the elimination of the class-of-one equal protection rights of public employees" and that "by integrating an illegitimate animus requirement with the Supreme Court's formulation of the class-of-one in Olech, the Supreme Court in Engquist could have been assured that class-of-one causes of action would be limited to a small number of employees genuinely wronged by unequal, irrational, and malicious government conduct").

(157.) See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 at 896 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012) (Posner, J.). Judge Posner concluded that Roberts's dicta extended Engquist's "analysis (though not its holding) from public employees [sic] supervisors to the police." Id. Judge Easterbrook, in a concurring opinion, concluded that "[a]lthough [Engquist's] holding is limited to public employees, its rationale is not." Id. at 903. See also Farrell, supra note 38, at 128 ("In explaining its balancing of employee rights and government employer requirements, the Court enunciated a much broader principle that expanded the exception well beyond government employment--Olech class of one claims are ill-fitted, and therefore do not apply, to government acts that involve the exercise of discretion.").

(158.) On this point, I disagree with the suggestion by Professor Shanske that Chief Justice Roberts's dicta were not "thought through." See Shanske, supra note 38, at 982. I think the dicta serve a strategic, instrumental purpose in changing the terms of the class-of-one conversation. As Shanske notes, "the general rhetorical force of the broad dicta in Engquist must be conceded[,]" see id., and I think that is where the doctrinal work is being done: at the level of rhetoric and discourse, not so much as an example of air-tight "logical" argumentation.

(159.) Professor Powell suggests as much in remarking that "Roberts is a notoriously skillful Chief Justice." Powell, supra note 156, at 279. Professor Powell quotes Justice Holmes for the idea that it is "little decisions which the common run of selectors would pass by' that often 'have in them the germ of some wider theory, and therefore of some profound interstitial change in the very tissue of the law.'" Id. (citations omitted).

(160.) John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1219 (1993). In this article, Roberts defends the result reached in Lujan v. Defenders of Wildlife, 504 U.S 555 (1992), as consistent with the law of standing under Article III. Roberts suggested that critics of the decision were in fact contesting the premise that injury-in-fact was a predicate of Article III standing. He argued that Defenders was not a transformation of the law of standing, but a direct application of the Article III injury requirement. Roberts served as Principal Deputy Solicitor General, United States Department of Justice, at the time Defenders arose and appeared at oral argument before the Supreme Court on behalf of Secretary of the Interior, Manual Lujan.

(161.) See Powell, supra note 156, at Parts IV.A-C; Shanske, supra note 38, at Parts II.B.3-4.

(162.) Engquist v. Or. Dept. of Agric., 553 U.S. 591, 594 (2008).

(163.) Id

(164.) Id.

(165.) Id.

(166.) Id.

(167.) Id.

(168.) Id. at 594-95.

(169.) Id. at 595.

(170.) Id.

(171.) Id.

(172.) Engquist v. Or. Dept. of Agric., 478 F.3d 985, 991 (9th Cir. 2007).

(173.) Engquist, 553 U.S. at 595.

(174.) Id.

(175.) Id.

(176.) Id. at 595-96 (quoting Engquist v. Or. Dept. of Agric., No. Civ. 02-1637-AS, 2004 WL 2066748, at *5 (D. Or. Sept. 14, 2004)).

(177.) Id. at 596.

(178.) Engquist v. Or. Dept. of Agric., 478 F.3d 985, 996 (9th Cir. 2007). The Ninth Circuit also concluded that the evidence was insufficient to sustain the verdict on grounds of substantive due process under the Fourteenth Amendment. Id. at 996-99.

(179.) Engquist, 553 U.S. at 594.

(180.) Id. at 600.

(181.) Id.

(182.) Id. at 602-03 (citation omitted).

(183.) Id. at 606.

(184.) Powell, supra note 156; see also Shanske, supra note 38.

(185.) Engquist, 553 U.S. at 603.

(186.) Id. at 604 ("It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized.").

(187.) See id. at 608.

(188.) 28 U.S.C. [section] 1346(b) (2006 & Supp. 2011).

(189.) 28 U.S.C. [section] 2680(a) (2006); see also 42 U.S.C. [section] 5148 (2006).

(190.) U.S. Fire Ins. Co. v. United States, 806 F.2d 1529, 1535 (11th Cir. 1986) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).

(191.) See, e.g., Jonathan R. Bruno, Note, Immunity for "Discretionary" Functions: A Proposal to Amend the Federal Tort Claims Act, 49 Harv. J. on Legis. 411, 412-13 & n.20 (2012); Shanske, supra note 38, at 984-86 (discussing Engquist's emphasis on discretionary, subjective decisions against the backdrop of discretionary function exceptions in municipal tort and federal tort law).

(192.) Engquist, 553 U.S. at 603-04.

(193.) Id. at 600 (noting that constitutional rights "must be balanced against the realities of the employment context" and that the balance will consider "whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer").

(194.) Id. at 603. Professors Farrell and Shanske discuss the expansionist ambitions of the reasoning set out in Engquist. See generally Farrell, supra note 38; Shanske, supra note 38.

(195.) See, e.g., Powell, supra note 156, at 268 (concluding that the speeding ticket analogy "might seem to create more problems than it solves"); Araiza, Constitutional Rules, supra note 38, at 59 (suggesting that the reasoning employed "seems incorrect" and that the differential treatment more plausibly derives from the fact that the individuals in question are "relevantly different for equal protection purposes"); Shanske, supra note 38, at 979-82 (discussing the "much cited and problematic hypothetical" and suggesting that it is "a useless example if thought through carefully").

(196.) Engquist, 553 U.S. at 592.

(197.) Araiza, Constitutional Rules, supra note 38, at 61-62 & n.205; see also Cole, supra note 38, at 693-97.

(198.) Engquist, 553 U.S. at 604.

(199.) See Jennings v. City of Stillwater, 383 F.3d 1199, 1213-14 (10th Cir. 2004) (J., McConnell) ("Looking only at one individual, however, there is no way to know whether the difference in treatment was occasioned by legitimate or illegitimate considerations without a comprehensive and largely subjective canvassing of all possible relevant factors." (emphasis added)).

(200.) See generally supra Parts II.A & B.

(201.) Engquist, 553 U.S. at 595-96.

(202.) Engquist v. Or. Dept. of Agric., 478 F.3d 985, 991 (9th Cir. 2007).

(203.) See Engquist, 503 U.S. at 604.

(204.) Id. at 604 ("[C]omplaining that one has been singled out for no reason ... challenges the legitimacy of the underlying action itself--the decision to ticket speeders under such circumstances.").

(205.) See id. at 608.

   The practical problem with allowing class-of-one claims to go
   forward in [the public employment] context is not that it will be
   too easy for plaintiffs to prevail, but that governments will be
   forced to defend a multitude of such claims in the first place, and
   courts will be obliged to sort through them in a search for the
   proverbial needle in a haystack.

Id. Roberts's statement here only concerns the public employment context, but the force of the objection carries over to any context in which subjective, discretionary decisions are made.

(206.) Sullivan, supra note 114, at 63.

(207.) Id. at 59.

(208.) Id.

(209.) See Engquist, 553 U.S. at 600; Meyer, supra note 38, at 560-61.

(210.) See Engquist, 553 U.S. at 600.

(211.) This is the lesson that Judge Easterbrook draws from Engquist, as he explains in his concurrence in Del Marcelle. See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887,904 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012) ("This passage tells us that public employment is just an example of the situations in which the Constitution tolerates selective action, without requiring public officials to explain to a court's satisfaction why they exercised discretion in favor of one person and against another. Issuing citations is another example.").

(212.) See Araiza, Constitutional Rules, supra note 38, at 79-80 (contending that Engquist privileges "bright-line order over fact-intensive messiness, balancing, and mediating procedural rules" and that its "disfavoring of [a] practical, if ad hoc, approach may be [its] most important legacy").

(213.) See Farrell, supra note 38, at 130-37 (discussing application of Engquist's "exception for discretionary government action [to cases involving] the criminal justice system, government regulation, land use regulation, education, and government contracting"). See also Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (rejecting death row prisoners' class-of-one challenge to Arizona's lethal injection protocol and reasoning that decisions on matters "such as which drug protocol to use, which people to select for the execution team, and whether to use a central femoral IV" are by statute relegated to discretion of the Director of Prisons, with no requirement of uniformity); Novotny v. Tripp Cnty., 664 F.3d 1173, 1179 (8th Cir. 2011) (citing Engquist for the proposition that "a class-of-one claim does not extend to cases where the rules are uniformly applicable and a state official exercises his 'discretionary authority based on subjective, individualized determinations'"); Flowers v. City of Minneapolis, 558 F.3d 794, 799-800 (8th Cir. 2009) (concluding that class-of-one claim against police officers based on "directed patrol" of plaintiff's residence made for a "poor fit" and noting that "while a police officer's investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim").

(214.) Thomas v. Coopersmith, Civ. No. 11-7578, 2012 WL 3599415, at *5 (E.D. Pa. Aug. 21, 2012) (slip copy) (concluding that plaintiff satisfied the substantive elements of class-of-one claim, including the absence of a rational basis, so as to survive defendant's motion to dismiss); Mathers v. Wright, 636 F.3d 396, 402 (8th Cir. 2011) (concluding that plaintiff-student had stated a viable class-of-one claim and upholding denial of motion to dismiss); Franks v. Rubitschun, 312 F. App'x 764, 766 n.3 (6th Cir. 2009) (declining to apply Engquist to denial of parole); Hanes v. Zurick, 578 F.3d 491,495 (7th Cir. 2009) (declining to apply Engquist to police discretionary contract, reasoning that police officers, "in contrast to public employers, exercise the government's sovereign power" and have less discretion than government employers); Weidow v. Scranton Sch. Dist., No. 3:08-CV-1978, 2009 WL 2588856, at *9 (M.D. Pa. Aug. 19, 2009) (unpublished) (denying defendant's motion to dismiss a class-of-one claim).

(215.) Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 141-43 (2d Cir. 2010) (declining to extend Engquist's logic to limited discretion exercised pursuant to state's sovereign regulatory power, but dismissing the claim).

(216.) Professor Shanske is particularly critical of the dicta in Engquist, contending that they are of "a most virulent sort" because "they represent vaguely plausible notions about a much harder case not before the Court." See Shanske, supra note 38, at 982.

(217.) See Powell, supra note 156.

(218.) See supra notes 1, 2, and accompanying text.

(219.) See Powell, supra note 158. Professor Shanske has also profitably addressed this element of Engquist. See Shanske, supra note 38, at Part II.B.4.

(220.) Powell, supra note 156, at 271-76.

(221.) Id. at 271.

(222.) Id. at 264 (quoted in Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 897 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012)).

(223.) Engquist v. Or. Dept. of Agric., 553 U.S. 591, 604 (2008) ("[A]llowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action.").

(224.) See Araiza, Constitutional Rules, supra note 38, at Part IV.B., 62-66; see also Cole, supra note 38, at 693-97.

(225.) Engquist, 553 U.S. at 608 (If class-of-one claims are permitted in the employment context, "governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack.").

(226.) Petition for Writ of Certiorari at *5, Del Marcelle v. Brown Cnty. Corp., (No. 12-367), 2012 WL 4359246, cert. denied, 133 S.Ct. 654 (2012).

(227.) Id.

(228.) Id.

(229.) Id. at *4.

(230.) Id.

(231.) Id. at *5.

(232.) Id.

(233.) Id.

(234.) Id.

(235.) Id.

(236.) Id.

(237.) Id. at *6.

(238.) Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 889 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012).

(239.) Id.

(240.) Id.

(241.) Id.

(242.) Id. at 888.

(243.) Id. Regrettably, considerations of space and focus prevent me from attempting a sustained engagement with either Judge Easterbrook or Judge Wood's respective opinions. My comments on either opinion are necessarily partial and made for the sake of comparison, though each offers much food for thought in thinking about the unique challenges posed by class-of-one litigation and the doctrinal possibilities it could conceivably engender.

(244.) Id. at 889.

(245.) Id.

(246.) Id.

(247.) Engquist v. Or. Dept. of Agric., 553 U.S. 591,602 (2008).

(248.) Del Marcelle, 680 F.3d at 893.

(249.) Id. at 890-92 (discussing the reasoning of Olech and the critical reception it received from judges and the academy).

(250.) Id. at 891.

(251.) Id. at 894.

(252.) Id. at 894-95.

(253.) Id. at 894. The hypotheticals are described as follows: 1) an officer posted in a forty-five m.p.h, zone views a car speed by at sixty-five m.p.h, and does nothing, then tickets a car a minute later driving sixty m.p.h. Posner denies that the second driver has an actionable claim; 2) an officer observes two cars speed by--one an Aston Martin, the other a Prius--and pulls over Aston Martin to take a closer look at the car, but does not ticket, and then catches up to the Prius to give its driver a ticket. Posner concludes that, while not admirable, the officer's actions are "not unrelated to his public duties"; 3) an officer adopts a policy of ticketing only speeders in blue cars "who is not vindictive," who "has nothing against people who drive blue cars," but who "has just decided to rest his brain." Here, too Posner finds that the choice of ticketing only blue cars, for the reason stated, would not give rise to an actionable class-of-one claim.).

(254.) Id.

(255.) Id. at 895 ("Random can be rational: a random audit by the Internal Revenue Service should not be thought 'arbitrary' in a pejorative sense, though it is arbitrary in the sense that identically situated taxpayers who are not audited are being treated differently (ex post, not ex ante) from those who are.").

(256.) Id.

(257.) Id. at 894.

(258.) Id. at 895.

(259.) Id. at 897.

   Employment decisions, the Court pointed out, "are quite often
   subjective and individualized, resting on a wide array of factors
   that are difficult to articulate and quantify.... [T]reating
   seemingly similarly situated individuals differently in the
   employment context is par for the course." As it is in policing.

Id. (quoting Engquist v. Or. Dept. of Agric., 553 U.S. 591,604 (2008).

(260.) Id. at 897.

   Engquist notes that "public employees typically have a variety of
   protections from just the sort of personnel actions about which
   Engquist complains, but the Equal Protection Clause is not one of
   them." Americans have an even greater variety of protections
   against police misconduct, many of them of constitutional dignity.

Id. (quoting Engquist, 553 U.S. at 609).

(261.) Id. at 898.

(262.) Id. (emphasis supplied).

(263.) See id.

(264.) See supra notes 16-23 and accompanying text.

(265.) Larisaa MacFarquhar, The Bench Burner, THE NEW YORKER, Dec. 10, 2001, at 82.

(266.) See, e.g., Sutton, supra note 25; see also Posner, supra note 10, at 338 (discussing Ronald Dworkin's criticism of pragmatism as a species of consequentialism).

(267.) See Posner, supra note 5, at 541.

(268.) Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 889 (7th Cir.), cert. denied, 133 S. Ct. 654 (2012).

(269.) Id. (emphasis in original).

(270.) Id. at 899.

(271.) Id. at 900.

   The upshot of today's decision, however, is that something other
   than the normal rational-basis test applies to class-of-one claims
   in the seventh circuit. That is the very conclusion by this court
   that led to the grant of certiorari in Olech. If Justices thought
   they had disapproved our local rational-basis-plus-intent approach,
   that message has not been received.

Id.

(272.) See generally Farrell, supra note 68 (collecting and describing examples where "rational basis with bite" was enlisted to strike down state law).

(273.) Del Marcelle, 680 F.3d at 899.

(274.) Hunter v. Bryant, 502 U.S. 224, 229 (1991) (citation and quotations omitted).

(275.) Del Marcelle, 680 F.3d at 894 (discussing Hilton v. City of Wheeling, 209 F.3d 1005 (7th Cir. 2000).

(276.) Id. at 898 (discussing Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012)).

(277.) 209 F.3d 1005 (7th Cir. 2000).

(278.) Del Marcelle, 680 F.3d at 894.

(279.) Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012).

(280.) 680 F.3d at 898.

(281.) Geinosky, 675 F.3d at 745.

(282.) Id.

(283.) Id.

(284.) Id. at 748.

(285.) Del Marcelle, 680 F.3d at 898.

(286.) Id. at 913 (Wood, J., dissenting). Wood's approach resembles the position that Professor Shanske takes in arguing that limiting the class-of-one universe to cases alleging malice or violations of "clear standards" is insufficient and underinclusive. See Shanske, supra note 38, at 987-992. Shanske cites the dissent by Judge Reinhardt in the Ninth Circuit's Engquist decision as an example of what the class-of-one test should look like. Id. at 991-92.

(287.) Del Marcelle, 680 F.3d at 893 (describing the dissent's approach as "an open-ended list of factors for judges and jurors to mull over, a pile-up of adjectives, an invitation to consider unnamed further possibilities for establishing liability, and on top of all this a pleading requirement that may go beyond Iqbal yet is not applied to this case" and concluding that "so ad hoc an approach leaves the law of class-of-one discrimination in the confusion in which we found it when we agreed to hear the case en banc").

(288.) See Hanes v. Zurick, 578 F.3d 491,495 (7th Cir. 2009) (declining to apply Engquist to police discretionary contract, reasoning that "police officers, in contrast to public employers, exercise the government's sovereign power" and have less discretion than government employers).

(289.) Tuffensdam v. Dearborn Cnty. Bd. of Health, 385 F.3d 1124, 1128 (7th Cir. 2004) (quoting Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985)).

ALEX M. HAGEN, J.D, University of South Dakota School of Law, 2010; Law Clerk, the Honorable Roger L. Wollman, United States Court of Appeals, Eighth Circuit, 2010-2011; Associate, Cadwell Sanford Deibert & Garry LLP, Sioux Falls, SD. The opinions and views expressed in this Article are those of the author alone. He would like to thank Eric Davis, AJ Franken, Steve Iverson, Brittany Hatting, and Eric Cleveringa of the South Dakota Law Review for their diligence, eye for detail, and perceptive comments on substantive matters. He would also like to thank his wife, Blayne, for her patience, good humor, and support throughout the research, writing, editing, and hand-wringing process.