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62 S.M.U. L. Rev. 27 (2009)
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

handle is hein.journals/smulr62 and id is 29 raw text is: 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 William D. Araiza* ABSTRACT This Article examines the Supreme Court's recent class-of-one 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 against the govern- ment's legitimate interests in a flexible workplace and avoidance of litiga- tion, with the Court imposing a categorical rule favoring the government's side of the balance. This Article critiques this categorical balancing. It ar- gues that 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 gener- ally. 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 factfind- ing supporting legislation enforcing the Fourteenth Amendment. While the Court's relationship to the lower courts is quite different from its relation- ship to Congress, the lower courts nevertheless have unique talents useful to * Professor of Law, Brooklyn Law School. The author wishes to thank Mitchell Berman, Richard Fallon, Scott Gerber, Allan Ides, David Leonard, Paul Secunda, and Michael Waterstone for their comments on earlier drafts of this Article, and Jason Kort and Stephanie Yasuda for their research assistance. Responsibility for any errors remains solely with the author.

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