Richard Posner: A Class of One

Judge Richard Posner, best known for his contributions to the field of law and economics, has also made an outsized contribution to another area of the law—the equal protection class-of-one claim. By some combination of happenstance and design, Posner was able to shape the class-of-one doctrine even where his views were inconsistent with Supreme Court precedent. The Supreme Court’s initial exposition of the doctrine had identified an equal protection violation when there was intentionally different treatment of similarly situated persons without a rational basis for the difference in treatment. Posner insisted that this language included within it a requirement that a defendant have acted with animus toward the plaintiff, that is, a spiteful effort to “get” a person for reasons wholly unrelated to any legitimate state objective. Was the essence of the class-of-one claim irrationality, as advocated by the Supreme Court, or animus, as advocated by Posner? Surprisingly, Judge Posner saw his version of the class-of-one claim be- come somewhat commonplace. Posner, a single judge on a United States Court of Appeals, fought the United States Supreme Court, and, in some large measure, held it to a draw