Mixed motives speak in different tongues: doctrine, discourse, and judicial function in class-of-one equal protection theory.

AuthorHagen, Alex M.
PositionIntroduction through III. Impermissible Subjective Intent: A Cynosure of Equal Protection Analysis?, p. 197-226

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

PROLOGUE: OF UMPIRES AND JUDGES

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

Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire. (2) Roberts's analogy freshened up an old platitude of judicial restraint and echoed central concepts of rules-based jurisprudence previously endorsed by Justice Scalia. (3) In such an idealized legal landscape, rules are always already in place to provide a determinate principle on which to base a decision, a principle independent of the decision-maker and the specific facts at issue. For law to fulfill its proper function, it must be administered by judges whose willingness to faithfully enforce pre-existing rules overcomes any desire to fashion outcomes and doctrine on the basis of their subjective ideological views.

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

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

There are two central take-aways from that analogy: (1) judging is akin to umpiring, which Roberts characterized as rule-following, not rule-making, and (2) judges ought to play the limited, self-restrained role of implementing known rules as opposed to expressing particular policy preferences or shading the analysis in favor of a particular outcome. As against those claims, consider the following assertions:

[T]he reasons for the legislative character of much American judging lie so deep in our political and legal systems and our culture that no feasible reforms could alter it[.] (8) Even if judges wanted to forswear any legislative, any political, role and be merely the "oracles" of the law, transmitting directives rather than directing, they could not do so in the conditions in which they find themselves. (9) Ideology, in the sense of moral and political values that transcend the merely personal or partisan, is not an illegitimate, but an inescapable, feature of legal judgment[.] (10) So claims Judge Richard Posner of the Seventh Circuit, United States Court of Appeals, in his recent work, How Judges Think and its related predecessor, Law, Pragmatism, and Democracy. Perhaps best known for his foundational work in law and economics, Posner is also actively engaged in legal and constitutional theory. (11) He is an equal opportunity provocateur with a penchant for excoriating both conservative and liberal constitutional theories that he finds lacking. (12)

Posner thinks that Holmes got something fundamentally right in claiming that "'[t]he life of the law has not been logic: it has been experience.'" (13) He has consistently explained his judicial philosophy in terms of his commitment to legal pragmatism and hostility to legal formalism. (14) In his view, "the essence of formalism is to conceive of law as a system of relations among ideas rather than as a social practice." (15) With such a conception, law is figured as both autonomous and objective--a mode of inquiry characterized as a self-enclosed, self-justifying logical system of axioms and corollaries.

Formalism suggests that outcomes follow from correct premises; it seeks to explicate outcomes in terms of the formal relationships that obtain between the elements of the mode of analysis. It views legal doctrine as encapsulated in and expressive of formally stable conceptual relationships.

From Posner's pragmatist perspective, legal doctrine should be conceived as contingent and instrumental, not necessary or self-evident. Pragmatism "emphasizes consequences over doctrine" and operates to "fit doctrine around consequences." (16) Pragmatism doubts that results can be derived axiomatically from formal relationships, because there is always too much play in the conceptual joints that form those relationships. Behind the facade of their logical structure, "legal rules are often vague, open-ended, tenuously grounded, highly contestable, and not only alterable but frequently altered." (17) Inasmuch as ideology is inescapable, legal rules neither militate against nor stand apart from ideology's influence, but instead are tools whose selection and application may do the judge's ideological bidding. (18)

Nor, for Posner, is there any refuge to be found in overarching interpretive constitutional theories. Posner finds no evidence to support the notion "that persons with different political or ideological commitments can nevertheless be brought to agree on the answer to even the most testing, the most politically charged, legal question...." (19) Competing constitutional theories invoked by both liberal and conservative legal thinkers are not capable of yielding demonstrably correct answers. Rather, in Posner's view, they merely supply a veneer of certitude and support for particular normative frameworks and the outcomes they underwrite. Posner agrees with Judge Wilkinson's assertion that modern constitutional theories "'have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools which have little in common other than a desire to seek theoretical cover for prescribed and often partisan results[.]'" (20)

Pragmatism, in Posner's telling, is not a "theory of judicial decision making or constitutional interpretation that might yield definitive answers in novel cases[.]" (21) Rather, pragmatism "embraces and responds to law's frequent indeterminacy, becoming the default position of judges who do not have a theory of how to decide cases." (22) At its core, pragmatism "is merely a disposition to base action on facts and consequences rather than on conceptualisms, generalities, pieties, and slogans." (23)

From the pragmatist's perspective, Roberts's umpiring analogy fails from a myopic conception of what umpiring is. By thinking of umpiring (and by extension, judging) solely in terms of enforcing rules, the analogy ignores those facets of umpiring that require the exercise of judgment and discretion. Consider the following anecdote in which three umpires explain what they do when calling balls and strikes from behind the plate. The first, a realist, says, "I call them the way they are[.]" The second, a subjectivist, says, "I call them the way I see them[.]" And the third, a conventionalist, declares, "I call them and then they are." (24) A realist, a subjectivist, and a conventionalist may exercise judgment to reach the same result: all may agree that a given pitch is a strike, regardless of the theory of umpiring to which each respectively subscribes. Nothing necessarily follows from the particular account of calling balls and strikes that each umpire professes, but the anecdote shows that the practice of umpiring may be conceived and understood in starkly different terms.

Roberts's analogy anticipates the first two descriptions offered. According to the first umpire, a...

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