Logic of Continual Escalation

The death of Supreme Court Justice Ruth Bader Ginsburg demonstrates that the U.S. has a justice problem, a structure problem and a system problem. The conflict over her replacement is escalating: everything is at stake.

States falter when their institutions are weak and anachronistic. The United States is beginning to realize that its institutions are in serious distress, precisely because they are outdated and can no longer withstand the rough climate. In any case, there is no more certainty: will the minority bend the majority? Will the rules be respected? Does justice matter in the end?

In the deeply partisan U.S. justice system, replacing a seat on the Supreme Court is always a contentious affair that often stretches over a year. The Donald Trump administration is now using this political turbulence not only to scoop up a fervently desired third seat for the conservatives, but also to garner approval by mobilizing voters, driving the camps even farther apart, and disciplining its own senators.

All of this is a strategy of continual escalation. Republicans are paying back two and threefold what the Democrats did to the Supreme Court under Reagan and Bush. Thus, it would be logical for the Democrats, if they were to take over the White House and the Senate, two not very distant possibilities, to expand the court from nine to 11 seats or to expand their right to intervene in lower courts.

In the U.S., the Supreme Court does not necessarily serve the purpose of social harmony. It is supposed to mirror society and shape the country’s cultural-political and moral guiding principles. For this reason, seats on the Supreme Court are fought for like the office of the president. When two ideological decisions like election to the country’s highest political office and the selection of a justice collide, they release forces unlike any seen before.

Trump’s century-defining presidency has allowed institutions to weaken. The executive branch had already lost the people’s trust; the coronavirus contributed the rest. The legislative branch long ago relinquished any specter of dignity. And the presidential office does not reconcile anything, it scorns.

Too Many Problems

The U.S. is now paying a heavy price for a system that has fallen hopelessly behind the times. It begins with the right to vote, the unfairness of which no one contests anymore. It continues with an administration that is not capable of ensuring fair, equal and just elections. It is reflected in an election ballot whose partisan nature has been fixed through manipulation. The U.S. capital, Washington, D.C., despite having a larger electorate than Vermont or Wyoming, has no voice at all.

The system’s torpidity can be seen in the Supreme Court, whose justices hold lifetime appointment, and which places the nation’s fate in the hands of aged justices who, like feudal lords, only leave the bench when they die. It can be seen in the rules of procedure in the Senate and the House of Representatives, which make impeachment almost impossible. It can be seen in an interpretation of the Constitution that places militias above the state’s monopoly on power.

The death of Justice Ruth Bader Ginsburg shows that the U.S. has a justice problem, a structure problem and a system problem. That is too many problems at once, especially before an election.