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O’Connor & Kissinger: Public Lives and Their Meaning for Us

Some Overlooked Significance, and Wounded and Wounding Legacy

Sandra Day O'Connor (1930-2023)

A salute ought to go to the late Associate Justice, but not because of her role in dealing with issues of abortion, although her stances in this area have been significant; in her supposed leadership in ensuring greater moderation in a pointed-to conservative Court; in her being the first woman member of the Supreme Court; or in what group she voted with or against during her tenure on the Court. Her importance lies elsewhere: in the history of women’s voices in the public square, in their capacity for independent decision-making, in the status of the Supreme Court in the constitutional history of this country, and in the character of civil life in the U.S.

In the case of the public square (the space in society that accommodates and encourages the free exchange of ideas, that serves as the marketplace of ideas, and a space the First Amendment was designed to protect), women had not been entitled to a voice. They were to find that voice in the private spaces of society, those provided by the home. Thus, in 1848, for example, at the Seneca Falls Convention, called and organized by women as part of their liberation movement to discuss the “social, civil, and religious condition and rights of women,” the very leaders of the effort were so degraded by society that they could not conceive of themselves as entitled to chair their own meeting, at the beginning. It was a space within which only men should reign.

Matters changed to some degree over time, of course, but one has only to examine the second of the above-mentioned claims (the capacity for independent judgement) to understand the significance of Justice O’Connor’s tenure as Associate Justice of the Supreme Court.

One of the leading thinkers in the common law system that formed the foundation of the US’ legal order was William Blackstone, who espoused a very specific idea that justified the exclusion of women from the public sphere. He thought they should be excluded because of their alleged propter defectum sexus, meaning, their defect grounded on sex. This idea of defect based on sex was and still is (as we will see in my concluding statement) incorporated in US law. This was part of the thinking which prevailed in 1870, when the Fifteenth Amendment to the Constitution was adopted, providing for the right of former Black male slaves to vote, but excluding women, in general. So, too, in the case of women’s fitness for jury service. It was not until 1975 that the Supreme Court ruled (in Taylor v. Louisiana, a case involving crimes against a woman, who was robbed and raped) that a fair cross section of one’s peers, in jury trials, should include women. The idea of defect based on sex was seen as including the lack of intelligence, of being emotionally unstable, and of being without courage. The largely untutored former slaves were supposedly found to be more intelligent than women. Thus, how could women be recognized as having the right to vote? Serving on a jury required courage, intelligence, and emotional stability, so why should they be seen as having a right to serve on a jury?

Law, as a profession, is one of the oldest in the Western tradition. It has entailed, as professions usually do, a calling, it has been said, a paid occupation, requiring a body of specialized knowledge or skill (an exhibition of intelligence and emotional stability), which is generally respected by social, political, and cultural communities. Sandra Day O’Connor showed early intellectual promise. She was admitted to Stanford University, one of the most selective of academic institutions in the country, when she was 16; she graduated magna cum laude (meaning with great honor), in economics. By age 22, she had earned a law degree, graduating third in her class, from the same university. But she was able to gain a position only after she had offered to work without a salary and without an office. In short, she was not seen as entitled to the professional respect due a lawyer. When she was nominated to the Supreme Court in 1981, there was no women’s restroom near the courtroom. This means there was no expectation by those who built the courtroom that women would become members of the Supreme Court. That expectation (and I emphasize expectation here, because it forms part of cultural structures including modes of thinking and being) was not refuted by anything the subsequent leaders of the Court did to ensure restroom accommodation for possible future women members.

This leads us to the institutional standing of the Supreme Court and the relationship of that standing to the meaning of Justice O’Connor’s tenure as Associate Justice. It is the sole national institution that has the final say on the interpretation of the country’s Constitution, and, thereby, can render null and void the decisions of the President, Congress, the legislative, judicial, and executive organs of constituent states, as well as the actions of corporations, secular and religious. It can, also, reject or affirm the claims of individuals and groups, some involving the most conflict-laden issues in public life. It is the body the reasoning of which is used to understand what the law is, a reasoning that serves as a guide to lawyers, law students, legislators, and every public or private organization in the country.

Sandra Day O’Connor is significant because her work on the Court refuted claims concerning women’s intelligence, capacity for reasoning, emotional stability, and moral courage. Saying that she was the first woman to be a member of the Court allows for the wrong inference to be drawn—that she was the first woman to have possessed the capacity for the level of reasoning that could potentially render null the reasoning of men, nationally, and in every sphere of society’s life. It is more the case that the country had, for the first time, gained the capability to concede, grudgingly, the recognition of that capacity. It may even have been that, women, using the right vote and the capacity for public intellectual discourse, could no longer be confined or ignored by the organized power of patriarchy.

Her tenure on the Court also served as a temporal marker, in her reliance on the details of facts to form building blocks for a number of decisions she led (Lockyer v. Andrade, 2003, being an astonishing exception). The best decisions, by any decision-maker, are the offspring of refined distinctions, and only factual details allow for such refinements, not the ideological and political cleavages on which many decisions are often founded and built, thus subjecting civil society to legal terrains where the most important public decisions show little or no respect for facts, except for the ideological purposes they serve. It is the lack of the habit that relies on factual details which has occasioned the battles about whether a Democrat or a Republican is to be elevated to the Court, while boasting about separation of powers. Such political cleavages, of course, presume the prior existence of huge gaps in people’s thinking and values. If we accept the idea of a common society, most differences, properly examined, turn out to be a matter of degrees. Nature tells us as much. Patriarchy, which is one of the most powerful ideologies humans have encountered, is what informed the above-mentioned thinking of Blackstone concerning women’s putative defect, not detailed facts that could challenge existing power.

Justice O’Connor has left us an important method of legal discovery—one which should be expanded, reinforced by recalled actions of prior partial efforts by earlier judicial leaders such as Chief Justice John Marshall and Associate Justice Louis Brandeis. This expansion could help in ensuring better legal decisions by our courts, inducing a cultural turn toward the cultivation of a detailed, fact-based discourse and decision-making, and progressively removing some of the sharp edges that are informing what passes for public discourse in civil society. Associating her work with “incrementalism,” “judicial minimalism,” or a philosophy that seeks but “to split the difference,” does not contribute to a true understanding of what she attempted.

There is a third major meaning to be drawn from her tenure—the fact that she served on the Supreme Court has resulted in our fully overcoming the unfounded allegations leveled against women by Blackstone. They are still partly imbedded in our culture, including our common law order. This is why I earlier said admission of women to the highest levels of public life is something that has been grudgingly done. The abortion issue (and a reader has but to put aside where s/he stands on it) is hinged to nothing more than the lingering question about a woman’s capacity for independent reasoning, emotional stability, and moral judgement. It is the same question that undergirds the Equal Rights Amendment (ERA) and our disgracefully refusing (speaking of moral courage) even to debate, not to mention ratify, the 1979 international Convention on the Elimination of All Forms of Discrimination Against Women.


Henry Kissinger (1923-2023)

From the 1950s until his death in 2023, Henry A. Kissinger held a special place in international relations. He sought through theoretical and practical means to find ways to ensure the long-term, US international ascendency, first through the defeat of the former USSR and the social system it represented, including that system’s expressions throughout the world.

The theory and practice were not his original thinking. They were for millennia part of belief systems, patterns of practices, and/or political orientations in the West, in West Asia (especially among the Persians), in India, in China, among the Mongols, ancient Egypt, and elsewhere. They now, often, comprise the dominant outlook and direction of international relations.

The aim of this brief essay is to indicate what this outlook is; to show how Dr. Kissinger adapted and used it to advise or otherwise shape policies for the US (and by so doing compelled certain relations among countries and peoples); to demonstrate that the posthumous evaluation of his contributions to international public life as the most important by any single person is debatable, if not inaccurate; and to suggest a more balanced manner to assess those contributions. The essay will end by arguing that the significance of Dr. Kissinger’s influence and the impact associated with that influence promise a rather dire future for the US and for the world.

The philosophy, outlook, or ideology to which Dr. Kissinger subscribed and which he deftly used and made almost glamorous during the late 1960s and 1970s (and which defined the US’ policy emphases from then to today) is called political realism. It is a theory that is based on the assumption that human nature is selfish, self-seeking, and evil, at the individual and especially at the collective level, and that issuing from this selfishness is competition and conflicts, between individuals and groups, including the nation-state, and that the means by which the interests of individuals and groups can be reliably protected and advanced is power.

Since the sovereign state is the basic unit of group power in international relations, the most important duty of governments and the people who populate them is the augmentation of power, often referred to as power maximization. This maximization of power must be pursued in association with, at best, “moral skepticism,” that is to say, a permanent doubt with regard to whether morality can ever have any effectiveness in international relations.

The practice of the theory is what Kissinger, as a student, studied for his doctoral degree at Harvard; it is also that which formed the core of his first book, A World Restored, which illustrated how leading statesmen (primarily Prince Klemens von Metternich, Austria’s foreign minister, Prince Maurice de Talleyrand, foreign minister of France, and Viscount Castlereagh, British foreign secretary) sought to re-establish social and political stability in Europe after the 1815 defeat of Napoleon Bonaparte. The cynicism, intrigue, deception, and the utter a-morality that accompanied the so-called restoration of order (it was really a conservative reaction against the radical ideas ensuing from the French Revolution) are important features of the book, but its main focus is the technique called the “balance of power,” central to political practice of realism, which occupied his scholarly focus. That focus has become the operating principle of governance in the world, not what was intended after World War II, through the UN system.

Balance of power refers to the past, present, or sought distribution of power among states, in terms of their respective national capacities, or in terms of the groupings of states, often referred to as alliances or alignments of states. The distribution may be unipolar, in which case a single state dominates regionally or world-wide; it may be bi-polar, meaning, power is primarily distributed in favor of two states, regionally or world-wide, with other countries aligning themselves around the two—the US and the former USSR, from 1945-1990s, for instance; or it may be multi-polar, in which case there are, regionally and world-wide, multiple centers of approximately equal distribution of power. None of these systems of balance is stable, because countries which are at a disadvantage under it are always seeking to change the existing conditions to improve their actual or perceived status, and those countries for which the existing conditions are favorable are always opposed to changes that will strip them of the advantages they have. Those countries which seek significant alterations in existing distributions are called “revisionists” or radical states; those who seek to have conditions remain largely the same are referred to as “status quo” or conservative states. The Soviet Union, representing Marxian socialism, was seen as a revisionist state—threatening the dominant social class within capitalism.

The system of alignments which came out of the Napoleonic wars was a multi-polar one, in which Austria, Britain, France, Prussia, and Russia vied for dominant influence, but collaborated in ensuring that radical republican ideology would not succeed in undermining the monarchical order of Europe. It is this system (which generally succeeded in re-imposing an increasingly decaying past), along with its expanding colonial presence throughout the world, which Kissinger studied and used to prepare himself for the post-1945 bi-polar world, as touched on above, and what he and his disciples or fellow thinkers brought to bear on a unipolar system, led by US, which briefly existed from 1992 to about 2010, followed by what is seemingly an emerging multipolar system, with China, the European Union (EU), India, Russia, and the US viewed as tomorrow’s great powers, with Brazil, Indonesia, Iran, Mexico, South Africa, Saudi Arabia, Turkey, and Ukraine, among other like countries, seeking to become less dependent on or more independent of traditional centers of power.

A “world restored,” therefore, was inherently an unstable and dangerous one, because its stability and legitimacy depended on its crushing a political or ideological outlook (republicanism) which, by its advocacy of equality, liberty, and popular sovereignty (as opposed to the sovereignty of monarchs), appealed to a wider and wider public. Likewise, within that system were revisionist countries, such as Prussia, seeking changes in Europe, and every other country in the system (perhaps with the exception of Britain) sought alterations abroad. The system could not be stable, unless these revisionists’ sentiments were also (the US, which was not part of the “world restored” geography, nevertheless, sought revisions of colonial claims in China, under the “open door” policy.) As well, the colonial system and its imperial rivalry (all these major states became empires) met with clamors for national self-determination in Italy, the German confederation, in the Balkans, Cuba, Greece, in Hawaii, in India, in China, in Indochina (Cambodia, Laos, and Vietnam, in particular), and in some areas of the Ottoman Empire, affecting matters within and outside of Europe. Much overlooked is the racial factor, within Europe, and between Europeans (and here we include Algeria, US, Canada, Australia, and New Zealand), on the one hand, and what we have come to call the Global South (former colonial territories), on the other. And nowhere is this factor more palpably manifested than in the claim of a century of peace, that is, peace was won for a hundred years (between 1815 and 1914), by way of a balance of power that had its engineering and design in a world restored.

This is a demonstrably inaccurate claim. The Crimean War, for example, which lasted from 1854-1856, and included Britain, France, Turkey, Sardinia—soon to be part of a united Italy—and Russia, was so brutal that it gave birth to the International Red Cross. But the upper classes wanted to have it believed that a system devised by them which had preserved peace for a hundred years, in contrast to the bloody and order-destroying wars sponsored by radicals, was worth preserving. So, too, were the authors of the system. So, it has become official history, and Dr. Kissinger helped to further this story. Nothing was said of the progressively eroding legitimacy of the system, as sentiments concerning alternatives to what then existed were censored, belittled, and, in some circumstances, repressed. Indeed, legitimacy (with which Kissinger dealt) had nothing to do with some broad principle such as justice, equality, or popular sovereignty, but with consensus among great powers. And revisionists’ wars such as those involving Prussia and Austria, Prussia and Denmark, or that involving France and a Prussia-becoming-Germany (despite the latter conflict’s role in sowing some of the bitterness that sponsored World War I), have been overlooked in this claimed one-hundred-year peace.

As regards wars in the Global South, in which European states engaged with abandon, they were not seen as wars; the latter took place among and between civilized peoples, only.

The Peace of Paris, which ended World War I and created the League of Nations, was above all an attempt to continue the balance of power rule by European elites (now joined by their peers in the US and Japan), who had earlier controlled the restored order after Napoleon. The new version of the balance of power did not prevent the revisionist regimes of Germany and Italy from gaining power, exposing and exploiting as they did, the long-overlooked social problems, including racism. World War II brought intellectual, economic, social, and moral devastation to Europe, and the mantle of “world political leadership” passed from it to the US and the USSR, in a bipolar system of balance, and to the United Nations system. The purpose of the latter system is to rid the world from the scourge of war. Realists in general (and Kissinger in particular) do not share the view that the scourge of war can be or should be ended; they view it as a prerogative of states, especially great powers.

The project of eliminating war under the auspices of the UN has, thus, been frustrated, by an article in the Charter of that body (Article 51), which allows for individual and regional self-defense, in arrangements such as NATO, in case of an armed attack. Kissinger and others exploited this article in the development of military alliances in every region of the world during the Cold War, and in the creation of an environment within which preparation for war and the willingness to fight war (deterrence theory of war) became a political advantage for those seeking political power, regardless of the type of government, authoritarian or democratic. If one state began preparing for war, others had to follow. Military spending, collusions among government, arms manufacturers, young defense contractors, and academic training and research—and their lobbyists—became rife.

Kissinger’s contributions to this frustration, through scholarship, statecraft, and consultantships, are many. First, he gained the confidence of political elites, along with many in the business community, by his conceptual brilliance, which he utilized in showing how nuclear weapons capacity might be used, to the advantage of Washington and its allies, in the changed military strategy brought about by the advent of nuclear weapons. This was the burden of his 1957 book, Nuclear Weapons and Foreign Policy. Second, he brought back immense legitimacy to the balance of power worldview though his thinking, but more so through practice, in the tradition of Metternich, Castlereagh, and Talleyrand, when the dismaying results of that tradition, experienced in World War II, had invited so much doubt about it that removing the scourge of war became the stated, central purpose of the global community.

This practice was amply demonstrated in the 1972 decision to discontinue the over 20 years of legal and diplomatic isolation of the People’s Republic of China, and in the 1974-1975 peace accords in the Middle East. These diplomatic initiatives were publicly sold as peace efforts, but neither had peace in view. They were engaged in to give the US some advantage in its bi-polar struggle with the former USSR. If the US normalized relations with China, Washington could supply Beijing with weapons technology that could be used against the USSR, and in a US-USSR war, Moscow could no longer expect Beijing to remain indifferent, thus requiring the USSR to spend more on defense. In the case of the Middle East, Kissinger’s focus was to reduce the USSR’s influence in the area. By supporting peace between Egypt and Israel, as well as Syria and Israel, these Arab countries would largely have little need for the former USSR and its arms, and with a reduced influence of Moscow in the area, the ascendency of Washington would be assured.

The West Bank and Gaza remained occupied, the problem of East Jerusalem continued, and the issue of refugees endured untouched. In the case of China, far from promoting peace, that step toward normalization came at the expense of the people of Bangladesh, the genocidal war against whom was supported by Kissinger, because the perpetrator, Pakistan, was a close ally and supportive—actually the facilitating agent—of the secret talks which preceded the change in policy toward China.

The international power advantage Kissinger sought for the US also involved, much as his predecessors after the Napoleonic wars, quashing ideas which threatened the order that the balance of power sought to establish or preserve. He was no friend of socialism, be it that in Cuba, North Vietnam, Chile, or elsewhere. So, when Chile in 1972 elected a socialist government (seen—along with Cuba—by him as threatening to US paramountcy in Latin America and potentially extending the USSR’s influence in that region), he had no moral compunction about helping to overthrow the government of Salvador Allende in 1973. Neither did he have problems continuing the war against North Vietnam, in 1973 (despite his government’s promising the American people peace), with secret carpet bombing of Cambodia and, to an extent, Laos, with the former so destabilized that the Khmer Rouge and its leader Pol Pot were able to consolidate power and, in the process of doing so, slaughtered more than an estimated 2 million people.

Kissinger’s diplomatic “successes” did not only facilitate the public bringing back of the balance of power system, conferring on it a legitimacy that today openly outflanks the post-World War II call for common security, but he was able to glamorize it, and bring great prestige to his office and the US. The media and many young people wanted to know about him and his seeming ability to change the existing state of things. The present Secretary of State, Anthony J. Blinken, and National Security Advisor, Jake Sullivan, are able students of the “Master of the Game,” as one book characterizes Kissinger. They now preside over one of the more remarkable build-ups—involving Australia, India, Japan, New Zealand, the United Kingdom, South Korea, and Vietnam, among others—of an attempted power balance against China, one completely disregarding the UN.

This brings us to two observations, implicit in some of what we have already said but must now be dealt with explicitly. Since the balance of power is about augmenting power, those countries which have little of it or are deemed to be incapable of rendering but minimal help in augmenting or diminishing it for great powers, are generally neglected. Hence, Kissinger largely disregarded the clamors of the Global South during his tenure of office and paid little attention to domestic issues, whether those issues (domestic or international), were social, including racism and poverty; economic; or political. Indeed, he saw the proposals of the Global South for a new international economic order as revisionist and to be disregarded. Second, in balance of power systems, no value—except power—is sacred. Every other value can be sacrificed. Today’s foe can be tomorrow’s ally (Vietnam being used for alliance against China, for instance), and human rights are no barrier to action—consider the genocide in Bangladesh (or what was then called East Bengal or East Pakistan) and quashing self-determination and democracy in Chile while supporting dictator Pinochet.

Our assessment of Dr. Kissinger cannot be accurately done by viewing him as an individual only; one must bear in mind the fact that the country he served also (as in the case of the respective famous diplomats mentioned in the structuring of the post-Napoleonic world) puts a premium on power. It needs to be and remain the most powerful country in the world, and he was seeking to honor that political and psychological need. He must also be assessed in the context of how he understood peace and war, within the ideology of political realism. For him, peace is not a permanent ultimate end; it is but a value for which humans yearn, one that should be manipulated and used as an inducement to establish order, whether or not that order be just, and to limit the conflicts among states. Power, too, must be manipulated in the service of order. War, although regrettable, cannot be avoided, especially if it is the only path to national survival. And since inter-individual or international loyalty or trust cannot be presumed, only specially-gifted persons are likely to be consistently successful in providing alternatives to “the only path.” (There is a suspicion here, long a part of the thinking of the Department of State, that ordinary folks cannot be successful leaders in international relations, and it is consistent with socialization incident to European diplomatic practices.)

The best way to assess Dr. Kissinger, therefore, is whether the world he has helped to leave us, including the values associated with the balance of power, is one that bodes well for the national and global future. I think the answer is a resounding no. The problems we face—climate change, increasing global poverty, racism, the transborder movement of peoples, nuclear weapons proliferation and warfare, the arms race in certain regions of the world, disrespect for women and indigenous peoples, and suspicions held about “the other,” are not solvable by making power the central value in our lives. The disregard of social issues, as in the case of the pre-World War I and pre-World War II periods, will not make them go away; neither will the issues of self-determination, in the Middle East (this includes the Kurds and Palestinians), in Ukraine, in Scotland, in Kashmir, and in Western Sahara, for instance. Putting order above finding solutions to the underlying problems that threaten order is but the best recipe for future disorder. The elimination of distance by modern communication will only exacerbate the issues, and AI is not an answer. The balance of power has found itself in domestic politics, as well, and the life of the Republic is at stake. As with banners of “peace,” pronouncements about “liberty” and “democracy” will not save us.

Political realism and its associated values that Dr. Kissinger and his successors embodied must be rejected. The idea of human beings as evil and self-seeking (note the espousers have never said anything about themselves and why they should be trusted) has but to meet Jimmy Carter (who made the mistake of listening to Kissinger and others in admitting the overthrown Shah of Iran to the US, when his instinct told him not to, thus triggering the takeover of the US Embassy and the non-reelection of Carter), the decent man, who was belittled by realists—and for a long time, by a public manipulated by realists. It must not be forgotten that the threats we collectively face, such as the collapse of natural systems, have been the products of realist thinking (manipulation of and power over non-human nature). Rejecting a way of thinking is not enough, however. There must be workable alternatives for human beings.

One way to begin is with cultures and cultural expressions that are compatible with our natural system, starting with the fact that they are all interrelated, interconnected, and fragile, as all human beings in fact are, and commit ourselves, through a moral compass, to a common thriving, not one group operating at the expense of each other, based on the factually unsupported view that humans are evil and self-seeking—the source of distrust and suspicion. Institutions giving expression to this common thriving (the UN, for example) will have to be refined and strengthened, even as new ones are created. We also need more women leaders, who are not beholden to patriarchy, which invented political realism to justify and protect itself. This means a wholesale rethinking of what we have been doing and how, not an easy task, when we can point to Iran’s increased nuclear capabilities, North Korea’s galloping missile-launching capacity, and a Russia-China seeming mounting collaboration. But how did these developments take place? They are the results of many, many years of political realists’ power maneuvers and miscalculations, all in fact self-fulfilling and self-seeking—from new defense companies pursuing profits to the misrepresentations of political leaders trying to ensure re-election. We are but replicating past behavior, with in all likelihood, the same disastrous results.