When Neutral Rules Aren’t Neutral:

How Appellate Courts Should Evaluate Pretext Without Becoming Factfinders

Appellate courts are understandably cautious when constitutional claims turn on motive. The concern is familiar: probing intent risks entangling appellate judges in factfinding and undermining the deference owed to institutional decisionmakers. For that reason, courts often resolve retaliation and due process claims by asking a threshold question—whether the government has articulated a facially neutral justification for its action—and treating that answer as largely dispositive.

That instinct, however, is increasingly difficult to reconcile with modern constitutional doctrine.

In a growing category of cases—particularly those involving First Amendment retaliation—the existence of a neutral rule or explanation does not meaningfully answer whether it actually motivated the challenged action. The more difficult—and more important—question for appellate courts is how to evaluate pretext without departing from the traditional limits of appellate review.

Neutrality Is Not the End of the Inquiry

It has long been settled that governments rarely admit retaliatory motives. Retaliation doctrine therefore permits plaintiffs to rely on circumstantial evidence showing that protected activity was a motivating factor and that the asserted justification does not adequately explain the outcome.

Yet in practice, appellate courts sometimes short-circuit this inquiry by treating neutrality as conclusive rather than probative—committing what might fairly be described as the neutrality-as-explanation fallacy. When that occurs, doctrine risks collapsing into formalism, where the articulation of a lawful reason ends the analysis regardless of whether the record supports it.

That approach is increasingly mismatched with how modern institutions operate. Retaliation today is seldom overt. More often, it takes the form of discretionary mechanisms that are facially permissible but selectively deployed: internal investigations, policy enforcement, evaluative judgments, or procedural deviations that impose real consequences without formal sanctions.

The constitutional problem is not the availability of these mechanisms. It is their selective and outcome-driven use.

Pretext Is an Appellate Question—Properly Framed

Courts sometimes describe pretext as an inherently “fact-intensive” inquiry, implying that meaningful appellate review is inappropriate. That framing overstates the difficulty and understates the appellate function.

Pretext, properly understood, is not an inquiry into subjective intent. Rather, it is a record-based inquiry well suited to appellate review, which routinely assesses coherence, consistency, and explanation without resolving disputed facts. It is an inquiry into fit—whether the stated justification coheres with objective, record-based facts already contained in the record on appeal. Appellate courts routinely engage in analogous analysis when evaluating arbitrariness, rationality, and reasoned decision-making, all without resolving disputed facts or weighing credibility.

Among the indicators appellate courts may properly consider are:

• Temporal proximity that strains coincidence
• Shifting or inconsistent explanations over time or across audiences
• Departures from established procedures or institutional norms
• Disparate treatment of similarly situated individuals
• Consequences disproportionate to historical practice

None of these require credibility determinations. None require speculation. All are grounded in the record. Evaluating them does not transform appellate judges into factfinders; it reflects the ordinary—and necessary—exercise of appellate judgment.

Deference Has Limits—Especially in Speech Cases

The need for careful scrutiny is most acute in First Amendment cases. Retaliation doctrine already recognizes that circumstantial evidence is often the only evidence available. Yet some appellate decisions effectively negate that principle by demanding proof so direct that it can rarely exist.

The result is a doctrinal paradox: the more sophisticated the retaliation, the less likely it is to be actionable.

That outcome is inconsistent with the role of constitutional review. Deference exists to respect legitimate discretion, not to shield unconstitutional conduct from scrutiny. When a justification appears suddenly, is applied selectively, or produces outcomes sharply at odds with past practice, courts are not required to accept it at face value merely because it is facially lawful.

A Modest Clarification of Appellate Responsibility

What is required is not a new doctrinal framework, but a clearer articulation of an existing one.

Appellate courts should state explicitly what retaliation doctrine already assumes: a neutral explanation does not end the inquiry when the record reasonably suggests it is not the real explanation. Recognizing that principle neither expands constitutional doctrine nor diminishes institutional discretion; it ensures only that established protections retain practical force—and that constitutional rights are not reduced to matters of procedural form.

Conclusion

Many of today’s most consequential constitutional violations occur behind a façade of neutrality. Appellate courts need not pierce that façade through conjecture or suspicion. But neither should they treat it as dispositive.

The Constitution does not require courts to presume bad faith. It requires them to recognize when neutrality explains too little.