Arguing for petitioner Anup Engquist, Prof. Neal Katyal emphasized in his opening that the Ninth Circuit had held below that the Equal Protection Clause has no application at all to "class-of-one" claims in the public employment context no matter how outrageous the government conduct might be.

Justice Scalia's first question asked whether petitioner would be happy with traditional rational basis review. Katyal agreed that such a test would be acceptable, and he again emphasized that the Ninth Circuit's refusal to provide even that minimal form of review withholds important constitutional protection.

Other justices then began asking questions about how this form of rational review would apply in the at-will world of government employment. Justice Breyer, for example, asked if a supervisor would be permitted to fire an employee simply because he didn't like that person, even if his dislike was unconnected to concerns about government efficiency.

Justice Souter then asked whether the discrimination under a class-of-one theory requires that differential treatment be unrelated to government efficiency. Katyal answered affirmatively, in response to which Justice Souter asked whether this requirement "“ tying differential treatment to government efficiency "“ undermines at-will employment in the public context. After similar questions from Justice Scalia, Katyal suggested that at-will employment will occasionally be limited by class-of-one claims, but only when the government cannot articulate any way in which the decision was related to government efficiency. Katyal then went on to suggest that such cases will be exceedingly rare. After Justice Kennedy countered that such a scenario resembles a national for-cause employment system, Katyal suggested that the Court could further limit such claims by requiring a showing of animus.

The Court then moved to a series of questions about how recognition of such claims would affect the federal courts. Justice Ginsburg asked how courts would resolve the question of how to define those "similarly situated" to any given plaintiff, and whether such questions would be amenable to resolution on summary judgment.

Before Katyal could explore the question, Justice Scalia returned to the question of how rational basis review would operate in the employment context, asking whether the government could simply offer a list of seven possible justifications of their action to overcome a class-of-one claim. Katyal answered that such a list would be sufficient, but only so long as those justifications are grounded in facts.

Janet Metcalf, counsel for the respondents, then came to the podium and began by suggesting that petitioner's rule would subject everyday decisions by state employers to federal constitutional review.

Chief Justice Roberts and Justice Kennedy pressed Metcalf on why the Ninth Circuit's limitation on class-of-one claims is appropriate when the constitutional text protects "any person" and does not limit its application to those who are members of a particular class or are exercising a fundamental right. Metcalf countered that respondents have no issue with Olech, which extended protection in the regulatory context to a class of one, but argued that such a rule would be unworkable in the employment context. That is so, she argued, because of the "inherently subjective nature of employment decisions." In response to questions about other realms of government activity that might be similarly discretionary, Metcalf continued to distinguish the employment context from other areas of governmental action. In other areas, argue Metcalf, the "norm . . . is a relatively objective standard," while in weighing different candidates for a job the employer must "ultimately make a relatively subjective decision about who [she] think[s] is the best candidate" for the job.

After a series of questions relating to whether the petitioner had access to state law remedies, Chief Justice Roberts and Justice Kennedy asked what analytical basis there was for distinguishing between employment decisions and other governmental actions. Metcalf responded by saying that all respondents want is a line similar to that drawn in the First Amendment context, where public employers can impose restrictions on their employees that could not be imposed on other citizens.

Questions then moved to what the appropriate test would be, assuming the Court recognized class-of-one claims in this context. Metcalf urged the Court to hold that any conceivable basis would be sufficient, but Justice Souter asked whether it might be appropriate to be more exacting in the employment context. While the conceivable basis test might be appropriate in the context of legislation, where "we don't know what goes through the minds of individual legislators," it might be inappropriate where decisions, as in the employment context, are "very specific state-of-mind kind of decisions." Metcalf responded that although legislative decisions are the product of many decisionmakers, the individual employer is still considering a wide range of factors in coming to a decision.

Lisa Blatt, arguing on behalf of the United States as amicus curiae supporting respondents, then came to the podium and suggested that there are two forms of class-of-one claims "that should not be recognized in the public-employment context. The first is a claim of residual ill will or bad-motive complicitor, and the second is a simple demand for a rational basis for an adverse personnel decision."

The Justices began by asking a similar series of questions that Metcalf received, with Justice Ginsburg in particular asking whether an individual who is not given a promotion because of a bribe would have any protection under the Equal Protection Clause . Blatt suggested that other remedies would be available in that case, such that there would be no need to rely on the Equal Protection Clause.

Justices Souter and Stevens then asked what would happen in a case of mixed motives, where an individual is fired in part for ill will and in part for being late for work. Blatt responded that in the context of rational review, a court must decide simply whether there was a conceivable rational basis. In Justice Stevens's words, "the bad reason doesn't trump the good reason."

Posted in Engquist v. Oregon Dept. of Agriculture, Everything Else