Jack Balkin argues that O’Connor is not getting enough recognition as a woman of principle:

Many people viewed Justice O’Connor as a fact- sensitive compromiser who lacked deep convictions. Her views on religion belie this reputation. She operated from a deep, powerful, and consistent principle: the principle of equal citizenship. It was simply a principle that others did not fully recognize or honor.

One of the nice things about a principle of “equal citizenship” is that it sounds so universal, so uncontroversial, so rhetorically compelling that you can’t help but acknowledge it’s normative status.

The other nice thing about it is that it’s completely empty of cognitive content: the “principle of equal citizenship” can mean anything you want it to mean, until you want it to mean something else.

“For the principle [of equality] to have meaning, it must incorporate some external values that determine which persons and treatments are alike, but once these external values are found, the principle of equality is superfluous.”

– Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982)

In order to apply a principle like “equal citizenship” to a given set of facts, you first have to decide what is and (critically) is not “equal” - and when you do that, you are making a partisan determination; this will invariably be completely at odds with the originally universal appeal of your “equality” principle.

Consider the Ten Commandments cases, for example. One interpretation of “equal citizenship” might hold that because all citizens have an equal vote, those Ten Commandments displays which have been approved by a popular referendum should therefore be permissible. This would, after all, affirm the equal value of each person’s citizenship in the state.

Yet this was not O’Connor’s view. Was O’Connor right? Am I, if I suggest what I’ve described above? More importantly, can the phrase “equal citizenship” do any work in resolving the dispute?

On the other side of the coin, imagine a small town with a number of public schools and few additional Catholic schools. Some have argued that the government shouldn’t be permitted to use public funds to buy textbooks for the Catholic schools. This, they would claim, is a violation of the principle of “equal citizenship” (and thus a violation of the establishment clause). After all, both religious and non-religious students are free to attend the public schools, so providing special government aid to a Catholic school is arguably giving a special (and “unequal”) privilege only to the religious.

Yet O’Connor voted to uphold precisely such a scheme, believing that it treated religious and non-religious groups equally. Again, we have two contradictory visions of what “equality” means in substance. Who is right? Can the phrase “equal citizenship” do any work in helping us to resolve the dispute?

When you get right down to it, does the invocation of a principle of “equal citizenship” have any meaning at all? Or is it - like “judicial activism” - just a rhetorical trick we use to distinguish people who’s politics we agree with from those with whom we disagree?

So while the principle of “equal citizenship” sounds universal at first, when it finally becomes “thick” enough to guide judicial decision-making it is discovered to be quite partisan after all.

So what does this mean for O’Connor’s jurisprudence? Well, right away we can conclude that her supposed principle of “equal citizenship” wasn’t an abstract principle which all citizens could (or at least should) affirm. Instead, it becomes clear that O’Connor’s fact-specific decisions look a lot like substantive expressions of her vision of particular political preferences.

Here is Stanley Fish, making this same point in the context of the Freedom of Speech:

The abstractions at the center of First Amendment jurisprudence - freedom of expression, the free flow of ideas, self-realization, self-governance, equality, autonomy - do not in and of themselves point us to the appropriate distinctions or help us to order a set of facts on the way to rendering an opinion. Before we can proceed to do those things, the abstractions have to be filled in with specifications of what is included in their scope, specifications they themselves do not provide.

Although free speech values supposedly stand alone and are said to be independent of circumstance and political pressure, they only become thick enough to provide a direction for decisionmaking when definitions and distinctions borrowed from particular circumstances (and borrowed selectively in relation to some substantive agenda) are presupposed as their content. You must determine what you mean by “expression” or what is and is not a “free flow” or what does and does not constitute “self-realization” in relation to what notion of the self before any of these so-called principles will have any bite. And since these are not determinations those principles can make for themselves, when they do have bite, when invoking them actually gets you somewhere, it will be because inside them is the outside - substantive values, preferred outcomes, politics - from which they are rhetorically distinguished.

– Stanley Fish, The Trouble With Principle, pp. 141 - 142.