Constitutional Rules and Institutional Roles: Lessons from the Equal Protection Class of One

Abstract

This Article examines the Supreme Court's recent equal protection case, Engquist v. Oregon Department of Agriculture, where the Court held that the class-of-one equal protection theory did not apply in the government workplace. The Article concludes that Engquist reflects an implicit balancing of employees' equal protection rights and government's legitimate interests in a flexible workplace and avoidance of litigation, with the Court imposing a categorical rule favoring the government's side of the balance. This Article critiques this categorical balancing. It argues that as a substantive matter such a categorical rule is generally inappropriate where interests of constitutional stature exist on both sides of the balance. However, it is the Engquist Court's method that carries with it the most troubling implications for equal protection and constitutional rights generally. Engquist disregards the sub-constitutional decision rules that lower courts developed to apply the constitutional principle the Court announced when it officially endorsed the class-of-one theory in 2000. Those rules were designed to honor both sides of the balance described above, and drew on trial courts' ability to impose appropriate pleading requirements, sift carefully through facts and thus cull meritless claims at early stages of litigation while allowing potentially meritorious claims to progress. The Court's disregard of the doctrinal rules developed by the lower courts hearkens back to its analogous disregard of congressional factfinding supporting legislation enforcing the Fourteenth Amendment. While the Court's relationship to the lower courts is quite different from its relationship to Congress, the lower courts nevertheless have unique talents useful to the project of applying constitutional principles. Engquist's exclusion of the lower courts from the task of applying Court-announced constitutional principles suggests that the Court will also greet with skepticism future congressional attempts to participate in that project. Indeed, Engquist's method is quite consistent with the most restrictive versions of the modern Court's approach to congressional enforcement legislation. Given that equality claims in the future will likely feature conduct that is subtler and more socially embedded than the more open and obvious unconstitutional conduct of the past, any unwillingness by the Court's to accept Congress as a partner in uncovering and remedying equal protection violations constitutes an ominous portent for advocates of equality. Engquist, while certainly not a conclusive indicator of the Court's likely direction on this issue, gives cause for concern.