Of Hobgoblins and Justice O'Connor's Jurisprudence of Equality
January 1, 2001
DISCLAIMER: This text has been transcribed automatically and may contain substantial inaccuracies due to the limitations of automatic transcription technology. This transcript is intended only to make the content of this document more easily discoverable and searchable. If you would like to quote the exact text of this document in any piece of work or research, please view the original using the link above and gather your quote directly from the source. The Sandra Day O'Connor Institute does not warrant, represent, or guarantee in any way that the text below is accurate.
Article Text
(Excerpt, Automatically generated)
Of Hobgoblins and Justice O'Connor's Jurisprudence of Equalityt
Vikram David Amar•
INTRODUCTION
Justice Sandra Day O'Connor is, I'm sure, tired of being identified as the jurist who holds the fate of constitutional law in her hands. At a recent judicial conference, she responded to a seemingly innocuous observation by United States District Court Judge Terry Hatter that she is the pivotal high court vote in so many disputed areas by chiding him with the line: "You've been reading too many newspapers. I get a little impatient with that description."'
But the newspapers and Judge Hatter are right: Justice O'Connor's vote and voice are, at this point in time, constitutionally crucial. And I'm not sure that recognition of this reality is really what bothers her. Instead, I think what must get tiresome for her is not the observation that her stance determines outcomes, but the separate (though often accompanying) comment that her voice is idiosyncratic, ad hoc and not terribly consiste nt.2 Being reminded you have the power is one thing; being accused of exercising the power in an erratic and unprincipled way is quite another.
In this short essay, I'd like to unpack a few of the supposed idiosyncracies and inconsistencies in Justice O'Connor's jurisprudence of equality. Equal protection law is, of course, a huge topic, so I am going to narrow my focus to the most contentious area of equal protection, and the one where Justice O'Connor has made her most visible mark on legal doctrine-t