Mugwump, Mediator, Machiavellian, or Majority? The Role of Justice O'Connor in the Affirmative Action Cases

The purpose of this article is to provide a critical analysis of Justice O'Connor's affirmative action opinions. It will show that while her early record provides justification for all three characterizations, her more recent decisions suggest the emergency of a more favorable image. Her opinions in Croson and Media Broadcasting reflect the realization that a narrow, hair-splitting approach to this critical social and constitutional crisis will do little to hasten its resolution; that there is apparently no form of affirmative action that the liberal wing of the Court is unwilling to endorse, making her consensus by compromise approach a futile dream; and that, thus, there is no further reason to mask her true commitment to the principle of non-discrimination. The article will further show that her opinions reflect certain analytical models and philosophical premises on which a coherent affirmative action jurisprudence can be based; that when fully worked out and articulated, these models and premises mandate a forthright repudiation of everything except the truly remedial forms of affirmative action; that this is the position she will ultimately take; and that around her will eventually form a new and consistent majority on the affirmative action issue.