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By Root 1201 0

’s travels, too. She often told the story of an earlier trip to India, when she went to hear an argument before that nation’s highest court, in New Delhi. The case involved a dispute between Hindus and Muslims over government benefits. But as the argument began, O’Connor was surprised to hear the lawyers on both sides citing precedents from the United States Supreme Court in support of their positions. At one point, the lawyers were debating the meaning of an opinion that O’Connor herself had written about the separation of church and state. As O’Connor said in a speech after she returned, “When life or liberty is at stake, the landmark judgments of the Supreme Court of the United States…are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C., or the state of Washington, or Springfield, Illinois. This reliance, unfortunately, has not been reciprocal.”

O’Connor’s alienation from her party did not happen overnight, nor did it ever amount to a complete breach. Her rebellion took place mostly on issues relating to the culture wars—like abortion, church-state relations, and gay rights—but she hardly turned into an across-the-board liberal. On criminal cases, including the death penalty, she remained a hard-liner; on federalism and states’ rights, she stayed a firm ally of Rehnquist’s. On one issue, fatefully, for the country and within the Court, O’Connor remained poised on dead center—race.

When O’Connor joined the Court in 1981, civil rights still occupied a major part of the justices’ agenda. One of her early major opinions for the Court, in 1989, set out her views on the subject—in typically opaque fashion.

Richmond, Virginia, passed a local ordinance requiring businesses contracting with the city to set aside 30 percent of their sub-contracts for minority-owned enterprises. After losing a contract for installing stainless steel toilets at the city jail because it lacked the required minority subcontractors, the J. A. Croson Company sued the city, claiming a violation of the Equal Protection Clause. The Court agreed, striking down the set-aside program by a 6–3 vote in Richmond v. Croson. O’Connor was assigned to write the opinion.

To do so, O’Connor had to wade into one of the thorniest debates in constitutional law. Five decades earlier, the Roosevelt appointees made sure that the Court vindicated the constitutionality of the New Deal. Henceforth, if Congress or a state legislature approved a statute, the justices weren’t going to interfere with the democratic process. But that approach left a major question unanswered. What if a state passed a law that discriminated against a minority group—as, for example, the Southern states did all the time? What if a state said only whites could vote in primaries or serve on juries? Would the Court let those laws stand, too? The justices answered such questions with the most famous footnote in the Court’s history. In note 4 of United States v. Carolene Products, an otherwise minor case from 1938, Justice Harlan Fiske Stone suggested the Court would treat different kinds of laws in different ways. In cases about economic or property rights, the justices would defer to the political process. But when it came to laws that appeared to be targeted at racial minorities or other “discrete and insular minorities,” the Court would apply “more searching judicial scrutiny.”

As later justices interpreted the famous footnote, this meant that if a law appeared to discriminate against blacks, the justices would apply what became known as “strict scrutiny” to see if the law was justified. During the civil rights revolution of the 1960s, the Supreme Court repeatedly applied strict scrutiny to all laws that contained racial classifications—all of Jim Crow—and struck them down. As the Court’s precedents evolved, it became clear that if the justices were going to examine a law with strict scrutiny, that law was invariably doomed.

The major complication to this doctrine of law emerged in the 1970s, when governments and companies started programs that were supposed