Mutually Assured Destruction of the Republic

Mutually Assured Destruction (MAD) is a concept that arose during the Cold War between the United States of America (USA) and the Union of Soviet Socialist Republics (USSR). The central idea of MAD is that, if one country were to launch a nuclear attack, the other country would counterattack. This process would repeat and escalate until both countries, and potentially the world, would be destroyed. The only way to survive was to not launch that first attack, or as it was phrased in the Cold War classic movie Wargames, “the only winning move is not to play.”

            So, what does this have to do with anything? The recent, tragic death of Associate Justice of the Supreme Court Ruth Bader Ginsburg has placed the USA in a situation relatively analogous to the Cold War. The Republican Party is in a position to gain a 6-3 conservative majority on the Supreme Court, potentially tipping the balance of the court decisively in their favor for decades to come. No one can deny that this is a once-in-a-generation political opportunity. It is also potentially the first salvo that prompts the counterattack and sets in motion events that could lead to the destruction of the Judiciary, one of the three central pillars of the US government, and potentially the destruction of the Republic itself. The metaphorical counterattack in this case being structural reforms to the Judiciary, something that has already been promised in the forthcoming Democratic Party statement of party goals in response to Republican actions that followed the death of Associate Justice Ginsburg.

            There are a number of ways of going about this that would curb conservative influence on the court system, the most obvious being court-packing. This tactic refers to adding Supreme Court Justices to the court beyond the current nine, best known due to President Franklin Delano Roosevelt’s attempt in the 1930s. While that attempt failed, discussion of a second attempt has been growing progressively more serious on the left in recent years. Another possibility would be a retroactive mandatory retirement age or term limit, which could clear away two conservative justices or more, depending on the specified age or year. This strategy would be more difficult to execute, given that Supreme Court appointments have been generally viewed as lifetime positions. Such a stance is based on the wording of Article 3 of the US Constitution, which states that “judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.” This interpretation – though longstanding – is still just an interpretation, leaving open the possibility of imposing limitations on the court without constitutional amendment.

            There are other methods of structural reform that would bring the balance back in favor of the Democrats, but these are just two. However, since neither would involve constitutional amendment, the Republicans would be incentivized to do the same once they regain power. Much of the same reasons that motivated the Democrats would entice them: the short-term stakes are just too high. Then, the cycle would repeat until endless restructuring would render the Judicial Branch impotent at best or untenable at worst. The only way to avoid the risk of setting this cycle in motion is for the Republican Party to hold off on nominating a new justice until after the election. The only way to really win in the long term here is not to play at all.