Justice O’Connor and the Substance of Equal Citizenship

Throughout her twenty-two Terms of service on the Supreme Court, Justice Sandra Day O’Connor has been subjected to labeling, and the labels form a pattern. She has been called a pragmatist;1 a centrist;’ a positivist3 who tends to defend the established legal order;4 a moderate conservative who typically favors a modest judicial role in lawmaking;5 a judge whose view of the structure of government emphasizes the defense of state sovereignty against undue intrusions of federal (judicial or legislative) power;6 a one-case-at-atime “minimalist” who seeks middle paths to decision and to doctrinal statement, and who prefers incremental movement to sweeping Kenneth L. Karst is David G. Price and Dallas P. Price Professor of Law Emeritus, University of California, Los Angeles. AUTHOR’S N -E: My thanks to Alison Anderson, Devon Carbado, William Rubenstein, David Sklansky, Jonathan Varat, and Adam Winkler for their careful and sympathetic readings of a draft of this article. Four other UCLA colleagues would have been excellent sources, for they served as clerks for Justice O’Connor. I have deliberately steered clear of consulting them, or even showing them a draft of this article. At several points in the article I indulge in unbridled speculation, and I want to avoid any possible inference that a clerk has told tales out of school. I am grateful for the assistance of our law school’s splendid research librarians, especially Jennifer Lentz and Kevin Gerson. ‘ Robert W. Van Sickel, Not