Document Type
Article
Publication Date
2013
Disciplines
Law
Abstract
The class-of-one equal protection claim is a red-headed stepchild of constitutional law. It expresses the principle of impartiality at the heart of the Equal Protection Clause, but is divorced from the group-centered tiered scrutiny of traditional equal protection analysis. Claimants who invoke it rarely succeed, yet many courts believe it could create systemic disruption unless its scope is limited. This article concerns the differing approaches employed by Chief Justice Roberts and by Judge Richard Posner, of the Seventh Circuit, US. Court of Appeals, in drawing and justifying boundaries on the class-of-one cause of action. In Engquist v. Oregon Department of Agriculture, Chief Justice Roberts articulated a categorical approach that would insulate discretionary decisions of public officials from potential class of-one litigation. Judge Posner, on the other hand, favors reform from within, advocating that a plaintiff should be required to plead (and substantiate) impermissible subjective purpose to state a prima facie claim challenging a discretionary decision by a public official. The differences in their respective approaches portend very different futures for class-of-one litigation and the judiciary's role in adjudicating class-of-one claims.
Publication Title
South Dakota Law Review
Volume
58
First Page
197
Recommended Citation
Alex Hagen, Mixed Motives Speak in Different Tongues: Doctrine, Discourse, and Judicial Function in Class-of-One Equal Protection Theory, 58 S.D. L. Rev. 197 (2013)