Clausewitz and the Supreme Court

“If the mind is to emerge unscathed from this relentless struggle with the unforeseen, two qualities are indispensable: first, an intellect that, even in the darkest hour, retains some glimmerings of the inner light which leads to truth; and second, the courage to follow this faint light wherever it may lead.”
—Carl von Clausewitz, On War, Book I, Chapter 3 

At the Institute for the Study of Modern Authoritarianism's “Liberalism for the 21st Century” conference, which I was fortunate enough to attend, a panel including Bob Bauer and David French was asked a question about the wisdom of court reform. Bauer responded with a pithy “You don't respond to norm breaking by breaking more norms,” and French with an ominous claim that “Court packing will lead to the dissolution of the republic.” In both responses, I saw something perilously common in discussions of how to restore our republic: a lack of what Clausewitz termed moral courage. 

When we hear “moral courage” we might easily think it means “the courage to act morally,” but this is not Clausewitz’s sense. “Moral” is used in the sense of “morale,” to refer to the emotional, psychological, and spiritual forces that affect the human experience. He writes: “Courage is of two kinds: courage in the face of personal danger, and courage to accept responsibility, either before the tribunal of some outside power or before the court of one’s own conscience” (On War, Book I, Chapter 3). It is to this second kind, the courage to accept responsibility, that we are referring to here.

Moral courage is thus the willingness to to take decisions with the knowledge that—in the event of failure—all manner of blame, shame, and reproach will fall on your head. Leadership requires one to make decisions, on the basis of imperfect information, that have substantial ethical ramifications, and so taking and executing any decision means enduring substantial moral danger. Even with the best intentions and a high degree of competence, a simple decision can lead to great loss of life—and thus potentially a great deal of blame. 

Clausewitz therefore considers moral courage a quality that is indispensable for leadership in wartime. He notes that physical courage (willingness to endure the risk of physical harm) is much more common and seems to have little correlation with moral courage; many soldiers who stood bravely under the harshest fire—undaunted by men falling dead and wounded all about them—nevertheless succumbed to panic and indecision when in positions of higher responsibility and exposed to this moral danger. 

He explains this divergence in effectiveness by the fact that higher levels of responsibility are inherently more intellectual, and therefore involve more reflection and more opportunities for doubt. On the battlefield, decisions can be made based on firsthand information, with the pace of action limiting the space for deliberation. At higher levels of responsibility, however, events play out across days, weeks, months, and even years, providing innumerable opportunities for the mind to be overwhelmed by doubts and second guesses. In these conditions, not only is a powerful intellect required to grapple with “problems worthy of the gifts of a Newton or a Euler,” but “Truth in itself is rarely enough to make men act. Hence the step is always long from cognition to volition, from knowledge to ability. The most powerful springs of action in men lie in his emotions” (On War, Book I, Chapter 3).

There is therefore no escaping the need of moral courage to act rationally when in a perilous situation. As Clausewitz writes: “The dangers of the moment always exert the most powerful influence on men, and therefore it often happens that an action seems audacious that in the end proves to be the only road to safety and which is therefore the most prudent course. Mere intelligence is rarely sufficient to allow men to rise to this level of insight; it is for the most part a natural boldness of character that equips an individual to discern such prudent paths” (Historical and Political Writings, p. 204). Clausewitz perceptively identifies that for leadership in a crisis (such as war), intelligence is insufficient; in fact, there are many cases of intelligent people crumbling with doubts, as they become overwhelmed by all the possibilities and probabilities they can imagine, able to generate a practically endless number of arguments for and against each course. 

What is needed, therefore, is strength of character, which Clausewitz defines as to “not be unbalanced by the most powerful emotions” (On War, Book I, Chapter 3). Clausewitz is careful to distinguish this firmness from sheer obstinacy, which should not be mistaken as excessive strength of character, but rather seen as a failure of emotional stability, since it derives from the egotistical desire to be correct. Strength of character allows one to muster the emotions needed to quell doubts and undertake rational action. 

It is for this reason that Clausewitz declares courage to be the table stakes of war. The intellect cannot operate if there is not enough courage to weigh the possibilities and probabilities truly rationally, i.e., untainted by fear. “Boldness can lend wings to intellect and insight; the stronger the wings then, the greater the heights, the wider the view, and the better the results; though a greater prize, of course, involves greater risks” (On War, Book III, Chapter 6). The most penetrating intellect counts for nothing if it is not buoyed in the sea of uncertainty by the mental fortitude that comes with this courage. When moral courage is married with the kind of intellect that allows one to clearly assess a situation, what emerges is what Clausewitz terms “determination,” the quality by which one can not only judge the most favorable course, but carry it out without being dissuaded or distracted by the innumerable causes for doubt that appear in the course of its execution. 

What I contend is that in our current political crisis, American democracy now hinges on our ability to muster sufficient moral courage to be able to act with determination, boldly seizing upon the most promising course, mindful of the dangers, but not intimidated by them. Our goal must be to have a strong enough character to not become unbalanced by the weight of events, avoiding both paralysis and heedlessness. We must turn our courage to what Clausewitz calls “the noblest pride and deepest need of all: the urge to act rationally at all times” (On War, Book I, Chapter 3). It is from this perspective that the question of norms—their destruction, maintenance, and restoration—must be approached. 

Norms are easier to break than to establish or restore, so it is true that we should be cautious about breaking them. It is likewise true that we cannot restore norms by breaking them. What we must not forget is that the enemy gets a vote. Norms cannot be restored when one of two parties displays a demonic drive for power, and a clear willingness to establish one-man rule. This—in itself—is a shattering of the most fundamental norm of a republic: that of loyal opposition. Republicans, if they are permitted, will use every institution of the republic as a sword with which to dismember it, and every norm it still possesses as a shield to block any effort at its full restoration. A fear of a “race to the bottom” is understandable, but when it is clear that your opponent seeks to drag you to your death, it is better to vigorously resist before you are face down in the silt. It is only by taking a hard look at the nature of the struggle we are facing that we can weigh the relative merits of our options. 

Supreme Court reform certainly is a norm-breaking escalation. It is also true that escalation encourages reciprocal escalation. It is therefore imaginable that Supreme Court reform could come to destroy the idea of an independent judiciary, the rule of law, and ultimately the republic itself. Yet that is not a reason to rule out this course, but rather it is precisely why moral courage is necessary to act rationally. As Clausewitz notes, there is little need for moral courage when the best choice appears certain. “But when a man has adequate grounds for action—whether subjective or objective, valid or false—he cannot properly be called ‘determined.’ This would amount to putting oneself in his position and weighting the scale with a doubt that he never felt” (On War, Book I, Chapter 3). Moral courage is needed here because of the very fact that there are reasons to doubt the wisdom of court reform. When it is clear we are on treacherous ground through which there is no safe road, we must have the courage to consider bold and daring courses, for the path that appears less dangerous is a poor choice of route if it does not ultimately lead us to safety. 

For all the risks that come with violating norms, doing so is now less risky than the alternative. In the depth of our current crisis, it is utterly irresponsible to rule out a path merely because it runs the risk of leading to the dissolution of our republic—at present, there are no courses available without this risk. To seek to preserve or reestablish norms as our primary defense against authoritarianism is to slap a band-aid on a bullet wound. 

Back to the concrete case I raised at the start of this essay: at the same panel, David French suggested reinstating the filibuster for judicial appointments, under the premise that it is better to block bad judges and force compromise. Yet, were Democrats to do this, there would be nothing to prevent Republicans from abolishing the filibuster the moment they took power. Republicans have broken norms whenever it has presented the opportunity to increase their power. They simply denied a vote on Obama’s Supreme Court nominee before abolishing the filibuster for such nominees to clear the way for Trump to appoint three justices in four years. The choices of nominees were also norm-breaking in their blatant partisanship. Trump’s appointees have not uniformly ruled in his favor, but that does not absolve them of having undermined the rule of law. Four justices sought to overturn birthright citizenship, a right that is unambiguously established by constitutional amendment. A court that disputes the plain reading of the Constitution undermines that court’s own legitimacy—doubly so when historical evidence shows there is utter clarity regarding what is meant by the text. Simultaneously, this court has been undermining the rule of law by overturning long-held precedents, uniformly increasing executive power while utterly gutting the civil rights legislation passed by Congress for the purpose of ensuring free and fair elections. 

Republicans have thus far refrained from court packing because they have had the opportunity to politicize the court by other means, appointing young, highly partisan justices through a process riddled with norm-breaking. Absent court reform, the Democrats will have very little opportunity to change the alignment of the Court, which will be able to continue to block efforts at preventing racial gerrymandering and to expand executive power in ways that benefit Republicans and hinder Democrats. 

And this gets to the heart of the matter: you cannot restore norms if the other side is not also interested in doing so, and there is every indication that Republicans will continue their pattern of bad behavior. Norms are an entirely unsuitable tool for preventing a party hostile to our republic from eroding it. To forgo any effort at protecting American democracy or the rights of its people in the name of norms would therefore be vastly irresponsible. 

If Democrats hold back from court reform for the sake of maintaining norms, they will be maintaining something that no longer serves its purpose. Attempting to uphold norms is no doubt the course that holds less short-term uncertainty, but we must have the moral courage to recognize that avoiding that uncertainty has only limited value in our situation. Our opponents have forced us into a situation from which we cannot extricate ourselves without considerable short-term costs and risks. It would be an act of true moral cowardice to prize reducing uncertainty over addressing the threat to our republic. 

A republic cannot survive without norms, but norms cannot be maintained while the most fundamental norm in a republic—loyalty to the republic by all parties—is under concentrated assault. Republicans chose not to impeach Donald Trump after his attempt to nullify the 2020 election, including inciting a riot to storm the Capitol, and they chose to nominate him in 2024. It was these actions that plunged us into an abyss out from which we cannot claw ourselves by ordinary means. 

Clausewitz—for all his reputation for abstrusity—puts it plainly: “we should not habitually prefer the course that involves the least uncertainty… There are times when the utmost daring is the height of wisdom” (On War, Book II, Chapter 5). Let us pray we have the moral courage to accept the courageous course necessary to draw us all back from the brink. Until and unless the Republican Party becomes worthy of its name, we should count ourselves lucky if breaking norms is the riskiest measure we must undertake. If that should fail—or we lack the courage to even make the attempt—we will be faced with a choice between braving even longer odds or else to succumb with disgraceful quietude.  

Featured image is Combat glorieux du vaisseau le Bucentaure contre trois vaisseaux anglais, by Auguste Étienne François Mayer