Friday, November 16, 2012
The Class of One at the Supreme Court
I've blogged here before about the equal protection class of one theory (in 2008, here, here and here, and earlier this year, here). That last post discussed Del Marcelle v. Brown County Corp., where the Seventh Circuit en banc failed badly in its self-described attempt to bring some order to its approach to class of one cases in the aftermath of the Supreme Court's decision 2008 decision in Engquist v. Oregon Dept of Agriculture. This is the first of a couple of postings I'll offer on the current state of the class of one, in anticipation of the Court's scheduled consideration of the Del Marcelle cert. petition this coming Tuesday, November 20.
In one of the three opinions in Del Marcelle, Judge Posner continued his near-defiance of the Supreme Court by again insisting that class of one claims reflect some type of animus or (in a concession to the Court's express statement that animus is not required) some inappropriate personal motive. Another of the Del Marcelle opinions, by Judge Wood, suggested that animus would be useful as evidence of the lack of legitimate government purpose that would mark a successful class of one claim (just as such a lack would mark any successful equal protection claim). Between the two opinions, nine of the ten judges on the court thought there was a role for animus in a class-of-one analysis.
So one question presented in Del Marcelle is whether animus plays any proper role in class-of-one claims. As my earlier posting this year indicated, the Supreme Court's first foray into the class of one, its 2000 opinion in Village of Willowbrook v. Olech held, rather breezily, that animus was not a necessary requirement of a class of one claim. This conclusion ran counter to Judge Posner's concern (he wrote the lower court opinion in Olech) that failure to require animus would open the floodgates to constitutional claims brought by people "singled out" by government for adverse treatment. (Justice Breyer shared this concern, which was why he only concurred in the judgment in Olech.) As I've noted elsewhere, after Olech lower courts struggled to find ways to cabin class of one claims consistent with the Supreme Court's disallowance of animus as a culling element. As explained in that article, some of those methods came close to reintroducing animus as a limiting factor.I've always thought the Court made a mistake in Olech when it dismissed the animus requirement without any real analysis. As I've argued (here and here), animus is in some ways in some ways the ultimate question equal protection review seeks to answer in any given case. Sometimes it's a conclusion drawn from the lack of any other plausible explanation for a government action (think of Romer v. Evans); in unusual situations, such as class of one claims, the difficulty of doing standard equal protection review suggests that direct evidence of animus (or absence of such evidence) can be a good indicator of the claim's merit (or, respectively, lack of merit). The Court's refusal to adopt this approach in Olech opened the door to lots of class of one claims (just as Judge Posner and Justice Breyer feared), leading lower courts to figure out other ways to cabin the doctrine's scope. As Del Marcelle illustrated, eventually many judges circled back to animus, in one form or another.
In the meantime, the Court came up with another way of limiting the reach of the class of one, the 2008 Engquist case noted above. Engquist's analysis is intricate; in my next posting I'll discuss it a bit more. For now, suffice it to say that in that case the Court cut off class of one liability for claims growing out of government employment, but using analysis that could be (and in fact has been) used to cut off class of one liability more broadly.
So both approaches promise to cut the class of one doctrine down to a manageable size. Which one is better? In the next posting I'll talk about the problems -- both practical and conceptual -- with the Court's choice.
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Hi Bill. Great post.
Interestingly, Olech did not come up in the Court's opinion in Armour v. Indianapolis, though it was briefed:
Posted by: Josh Blackman | Nov 16, 2012 5:47:24 PM
I think that those who want to "cabin," "limit," etc., class-of-one theory (not sure that Prof. Araiza is among them, but it sounds like he may be) need to justify that desire with something of real substance, beyond a merely-theoretical fear of "too many" lawsuits. What I mean by that, really, is that Olech was right - and that pre- and post-Olech efforts to "cabin" are overzealous.
Certainly in the employment world, many federal judges are already sick of employment cases; and so they thought that Engquist was an important thing to make sure that they didn't get even more boring employment cases on their dockets.
So we head towards a post-Olech world where business people's interests are protected by "class of one" theory, but the interests of the 47 (or 99) percent are not.
Posted by: Sam | Nov 17, 2012 8:38:05 AM
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