supreme court

The True Victors of Trumps Supreme Court Nomination   30%

Updated on September 26, 2020 at 5:21 a.m. ET.

When President Donald Trump announced today that Amy Coney Barrett is his nominee for the Supreme Court, he was effectively declaring victory. In 2016, Trump offered a horse trade to American conservatives: In exchange for their votes, he promised to appoint judges who would champion their interests. This nomination is yet another chance for Trump to remind his supporters that their bet paid off, conveniently timed just a few weeks before Election Day.   

While Trump may see this nomination as a boon to his reelection campaign, the true victors are the leaders of the conservative legal movement, who built the sophisticated machine in Washington that made this moment possible. With most of America’s institutions, from Congress to the executive branch, locked into a state of dysfunction and partisan bitterness, the Court has become the ultimate venue for the parties to fight out controversies and entrench their power. Barrett’s nomination is the culmination of a decades-long strategy to advance judges steeped in a conservative judicial philosophy that tends to favor limited government regulation of businesses, produce skepticism of abortion rights, and promote an expansive view of religious liberty. If Barrett is confirmed, a new 6-to-3 conservative supermajority will be poised to determine Americans’ rights for a generation.

The strategy of the conservative legal movement is basically a long game of cultivating personnel. “You know the saying that Hillary Clinton had in her book, ‘It takes a village to [raise a child]’? The Republican version of that is ‘It takes 30 years to grow a Supreme Court justice,’” Jack Balkin, a law professor at Yale, told me. Starting in the 1980s, a group of conservative intellectuals, including the future Supreme Court Justice Antonin Scalia, began developing networks to train and connect young law students inclined toward a conservative judicial philosophy. This elite class of lawyers then fanned out across firms, think tanks, academia, and government, creating a “conveyor belt of bright, qualified, conservative judges,” Balkin said.

[Read: Is this really the end of abortion?]

Amy Coney Barrett is a luminary of this movement. Unlike the other justices currently on the Supreme Court, she never attended an Ivy League school, but she scored two of the top clerkships available to promising young conservatives, working for Judge Laurence H. Silberman on the D.C. Circuit Court of Appeals and Scalia on the Supreme Court, where she was one of the justice’s favorite clerks. Scalia’s methods of judicial interpretation were a huge intellectual influence on Barrett. “She’s committed to tethering herself to the text, history, and tradition of the Constitution and [trying] to discern its original understanding,” O. Carter Snead, a professor of law and political science at Notre Dame and Barrett’s former colleague, told me.

One of the watchwords of the conservative legal movement is judicial restraint—an allergy to what adherents describe as judicial activism that leads judges beyond the text of a statute or the Constitution to a preferred policy outcome. “Judges are not supposed to be politicians” or impose “their preferred ideology or their preferred religious preferences,” Snead said. Barrett appears to share this view. “The public should be absolutely concerned about whether a nominee for judicial office will be willing and able to set aside personal preferences,” she said during an interview with a former student of hers at Hillsdale College last year. “That’s not a challenge just for religious people. That’s a challenge for everyone.”

Barrett’s ability to set aside her religious views as a Catholic has been a matter of intense debate since she was nominated to the Seventh Circuit Court of Appeals in 2017. “The dogma lives loudly within you, and that’s of concern,” Democratic Senator Dianne Feinstein of California said during Barrett’s confirmation hearing, questioning whether she would uphold the precedent of abortion rights set in Roe v. Wade. An ugly war has already begun over Barrett’s participation in a charismatic community in South Bend, Indiana, and whether that should be a factor in her Supreme Court confirmation hearings.

The irony of this debate is that it obscures the philosophical commitments that explicitly shape who Barrett would be as a justice. Article VI of the Constitution prohibits any religious test from being imposed on candidates for office. We cannot know how Barrett’s Catholicism shapes her views, and moreover, it is likely unconstitutional for senators to consider that in evaluating her fitness for the job. But it is clear that her involvement in the conservative legal movement has definitively shaped her approach to the law.

Abortion would be by far the most controversial issue up for consideration by a Supreme Court with a conservative supermajority. A number of cases already in the pipeline to the high court could lead to significant restrictions on abortion rights around the country. But conservatives also see opportunities in other areas of the law: expanding the boundaries of religious freedom, for example, as well as scaling back bureaucrats’ ability to determine government policies. Specific laws, most notably the Affordable Care Act, are at direct risk of being struck down; a challenge to the health-care law is scheduled for oral arguments just a few days after the election.

In recent years, conservative justices have joined the liberal wing of the Court for decisions on highly contested issues, from legalizing same-sex marriage in Obergefell v. Hodges to protecting the status of young undocumented immigrants in Department of Homeland Security v. Regents of the University of California. The biggest advantage of having six Republican-appointed justices on the Court is that conservatives can “seek review in the Supreme Court, and not have to worry about 5–4 decisions,” C. Boyden Gray, who served as White House counsel to George H. W. Bush, told me. The new conservative supermajority “promises a revolution in doctrine,” Balkin said. “But that’s too strong a word, because, in fact, doctrine has been changing markedly over the course of the last 30 years.”

[Caitlin Flanagan: Will Democrats fail the Amy Coney Barrett test?]

For all their claims of neutrality, Supreme Court justices are political creatures who tend to follow their ideological leanings when big decisions are at stake. Over time, the Court has gradually become more favorable to conservative judicial philosophies. Even Justice Elena Kagan, who was appointed by Barack Obama, has said so: “We’re all textualists now,” she declared. Barrett’s nomination, then, is not the beginning of a new era on the Supreme Court. It is the ratification of a long-standing trend.  

Thirty years ago, the movement could not claim this kind of dominance. Democrats tanked Robert Bork, one of the early advisers to Yale’s chapter of the Federalist Society, at his 1987 Supreme Court confirmation hearings. David Souter, who joined the Court in 1990, was later reviled by conservatives for steadily becoming more liberal over his tenure. Now every conservative who makes it to the federal bench is a known entity. “For all the candidates since then, they’ve all had records where you can get a pretty good picture of how they would deal with tough, national issues,” Gray, who worked on Souter’s appointment, told me.

By the time Trump ran for president in 2016, the conservative legal movement was firmly established in Washington. Trump presented an opportunity. In exchange for leaders in the movement doing the hard work of compiling and vetting potential judicial nominees, the president would hold open the door for a parade of judges committed to conservative judicial philosophy. Many voters believed this deal made Trump worthy of their support: In exit polls, a quarter of those who backed Trump said the Supreme Court was their chief motivation. Trump has secured more than 200 appointments to federal courts and circuit courts of appeal, along with two Supreme Court justices so far. He kept his end of the bargain.

Trump is clearly hoping another Supreme Court seat will give him a much-needed popularity boost as he continues to lag behind Joe Biden in polls. (He has also said he expects that the Court will determine the outcome of November’s election.) It’s not clear that the coming confirmation battle will ultimately push Trump over the edge with voters, however. Democrats, who can do little to block Barrett, are issuing dire warnings about the future of the ACA in swing states, where they believe they have the advantage. The top leaders of the conservative legal movement are all in to help the president get reelected. But they may have already gotten what they wanted out of Trump. Four more years of this president would seem short compared with the lifetime appointment of 48-year-old Amy Coney Barrett. No matter what happens in November, the conservative legal movement won.

Democrats SCOTUS Message Could Really Work in Swing States  

The struggle over Ruth Bader Ginsburg’s replacement on the Supreme Court could help propel Democrats to the brink of a Senate majority in November’s election. But whether it lifts them over that threshold could turn on the terms of the confirmation fight. Given the nature of the states that will decide Senate control, the Democrats’ path to a majority may be much easier if they can keep the debate centered on economic issues—particularly the survival of the Affordable Care Act—rather than social issues, especially abortion.

The reason: The confirmation fight is likely to further weaken the position of endangered Republican senators in Colorado, Maine, and Arizona—states where polls show that a solid majority of voters support legal abortion. But even if Democrats flip all three, they will still likely need to win one more seat to take the majority. And in the next tier of states where they could possibly flip a seat, the politics of abortion will make that more difficult.

What the confirmation fight could do is “give the Democrats a path to picking up two or even three Senate seats but make it harder in those other four or five states,” says Matt Mackowiak, an Austin-based GOP strategist.

In the latter group—which includes North Carolina, Iowa, and Montana—voters are much more closely divided on abortion and, in some cases, lean toward the GOP. A confirmation fight focused on abortion is also likely to further diminish Democratic Senator Doug Jones’s already modest reelection chances in Alabama, a state with a clear anti-abortion majority.

By contrast, the prospect that another Trump Supreme Court nominee could vote to overturn the ACA and its popular protections for those with preexisting conditions may create a broader set of opportunities for Democrats. Support for those protections is more consistent across party and regional lines than attitudes about abortion. And Democrats, as in 2018, have already invested heavily in ads reminding voters that all of the GOP incumbents (except Maine’s Susan Collins) moved to eliminate those provisions when they voted to repeal the ACA in 2017.

[Read: Is this really the end of abortion?]

“The president is in such a rush [to fill the seat], because he’s in a hurry to overturn the Affordable Care Act,” House Speaker Nancy Pelosi told The Atlantic’s editor in chief, Jeffrey Goldberg, referring to a Supreme Court hearing scheduled just days after the election on a Republican lawsuit to overturn the ACA.  

Trump “wants to get a justice in there in time for that so they can hear the arguments and vote on it. People have to know what this means to them,” continued Pelosi, who spoke with Goldberg this week at the virtual Atlantic Festival. “And what it means to 150 million families in America is that no longer will they have the protection of the Affordable Care Act when it comes to a preexisting medical condition.”

Likewise, when asked yesterday about Amy Coney Barrett, one of the leading contenders for the open Court spot, Biden immediately zeroed in on what a new justice would mean for health care—even though Barrett is considered the most likely of Trump’s potential picks to vote to ban abortion. “I think we should focus on what this is going to mean for health care, what it’s going to mean to once again have to say if you’re pregnant [that] it’s a preexisting condition, to be able to charge women more for the same procedure as men. It’s wrong,” Biden told reporters.

Historically, conventional wisdom in both parties has been that fights over the Supreme Court energize Republican voters more than Democratic ones. But operatives say the incredible surge of grassroots donations to Democratic candidates since Ginsburg’s death suggests that any GOP advantage on the issue has evaporated. As a result, most operatives I’ve spoken with aren’t expecting the confirmation fight to dramatically change the landscape in a year when the electorate’s divisions have been so deep and durable. “I have been saying for probably a year now that it will probably be record turnout since women got the right to vote,” says Glen Bolger, a longtime Republican pollster. “Does this increase that? I don’t know. Who said, ‘I’m not voting—oh, there’s a Supreme Court opening? Yeah, I’m voting.’ If you are still on the couch, I don’t know that this is the thing that gets you off it. I don’t know if anything does at this point.”

Even if the Court fight doesn’t fundamentally upend the election’s dynamics, small tremors could have a huge effect given how tight many of the key Senate contests remain. Each party sees one principal potential benefit for their candidates.

The biggest Republican hope is that a highly partisan confirmation fight will help GOP Senate candidates consolidate their party’s traditional voters, who in some races are supporting the legislators at slightly lower rates than they are Trump, polls suggest. The theory is that a pitched battle over the Court will encourage voters to retreat to their traditional partisan corners. That would especially benefit candidates in crucial states that lean Republican already, such as North Carolina, Montana, Iowa, and Georgia. “If everybody goes to their own sideline, that is going to help those Senate candidates,” Bolger says.

North Carolina Senator Thom Tillis would be the most likely beneficiary of such movement, given how consistently he’s trailed his Democratic challenger, Cal Cunningham, in polls. In those surveys, Tillis has almost invariably run behind Trump, including among Republican voters: Last week’s New York Times/Siena College poll showed Trump winning 89 percent of self-identified Republicans in the state and Tillis just 80 percent. The same dynamic might benefit Joni Ernst in Iowa: This week’s Des Moines Register/Mediacom poll found Trump winning 90 percent of Republicans there compared with Ernst’s 84 percent.

In other states, polls show less room for further Republican consolidation. For example, a recent Quinnipiac University survey showing a surprise dead-heat race in South Carolina found Republican Senator Lindsey Graham already drawing 92 percent of Trump voters against Democrat Jaime Harrison. This week’s University of Georgia survey found GOP Senator David Perdue winning that same share of Trump voters against Democrat Jon Ossoff. “There’s not a lot left” for Perdue to squeeze out among Trump supporters, notes Trey Hood, a University of Georgia political scientist who supervises the poll.

[Read: How to lose a swing state]

Democrats also see opportunity in the fight, but with a different set of targets: less ideological swing voters exhausted with the level of partisan conflict in Washington. The most recent state polls show GOP Senate candidates trailing among independents in Arizona, Maine, and North Carolina; running even in Georgia (with a large number undecided); and leading only narrowly in South Carolina. In Iowa, Ernst already trails among independents by 15 points, an even bigger deficit than Trump faces among them.

Anna Greenberg, a Democratic pollster working in multiple races, says the GOP’s attempt to push through a nominee is likely to alienate independent voters, given that Congress has been unable to agree on a relief package for Americans suffering economically or physically from the coronavirus outbreak.

For those voters, “it’s another example of how deeply craven and political Washington is, and how deeply craven [Senate Majority Leader Mitch] McConnell is,” she told me. “It’s not that hypocrisy arguments are going to be all that powerful; people expect politicians to be politicians. But I think this idea that Rome is burning and we’ve got to do this thing right now couldn’t be a more political thing to do in a moment of ongoing crisis for the country.”

The GOP’s rush, she says, “just reinforces that sense of intense partisanship, especially for independent voters who are longing for a return to normalcy … It’s exactly what independent voters don’t want.”

Biden more closely reflected swing voters’ mood a few days ago when he urged Republicans not to escalate the partisan wars by rushing on a nominee, says Charles Coughlin, a veteran Phoenix-based Republican consultant. “Biden was like: ‘Don’t do this, this is not who we are,’ and I think that’s where most of the country, most of those middle-road voters, want to be,” Coughlin told me. “They don’t want to be in this highly charged atmosphere.”

No issue in the confirmation process seems more likely to charge the atmosphere—or heighten interparty conflict—than abortion. For many liberals, the principal threat of appointing another conservative justice is that it will finally provide Republicans enough votes to overturn Roe v. Wade, the 1973 decision legalizing abortion. On a national basis, an argument over abortion is a clear winner for Democrats: In 2019 polling by the Pew Research Center, 61 percent of Americans said abortion should remain legal in all or most cases. And the issue creates greater internal fissures for the GOP: The share of Republicans who said it should remain legal (37 percent) was more than double the percentage of Democrats who said it should not (17 percent). Josh Schwerin, the communications director for the Democratic super PAC Priorities USA, says the group’s research has found that a majority of the voters who switched from Barack Obama in 2012 to Trump in 2016 oppose overturning Roe.

But that advantage isn’t consistent across the key Senate races. State-by-state polling results from 2018 and 2019, provided to me by the nonpartisan Public Religion Research Institute, show 56 percent or more of adults favoring abortion rights in Colorado, Maine, and Arizona, where Republican incumbents are endangered. Strong abortion-rights majorities of at least 55 percent are also evident in Michigan and Minnesota—where the GOP harbors longer-shot hopes of dislodging Democrats—and in Alaska, where an independent candidate remains within range of GOP Senator Dan Sullivan. In all of those states, white evangelical Christians, traditionally the constituency most focused on installing conservative justices, make up just 15 percent or less of the population.

But in Iowa, only a slim 52 percent majority favors abortion rights. Support dips to 49 percent in North Carolina and Georgia; 48 percent in Texas, Montana, and Kansas; and 47 percent in South Carolina. Evangelical Christians represent nearly one-fourth of the population in Kansas and South Carolina, one-fifth in North Carolina, and just below that in Georgia and Iowa. In all of those states, Mackowiak says, “these cultural issues are net unhelpful to the Democrats.” Support for legal abortion falls even further, to the low 40s, in both Kentucky and Alabama.

[Read: Trump takes away a lifeline for swing-state senators]

Comparable state-by-state data isn’t available on the ACA’s protections for patients with preexisting conditions. But the 2018 election results suggest that defending those provisions was an effective argument for Democrats virtually everywhere. National polling earlier this year by the nonpartisan Kaiser Family Foundation reported that not only did 95 percent of Democrats and 83 percent of independents consider preserving those protections “extremely” or “very” important, but so did 71 percent of Republicans. More recent Kaiser polling, conducted in partnership with “The Cook Political Report,” found that voters in Florida, North Carolina, and Arizona all gave Biden big leads over Trump on the issue of protecting patients with preexisting conditions—a measure of how widely Democrats lead on that concern.

Likewise, a new poll from the nonpartisan Commonwealth Fund, released today, found that voters in 10 battleground states prefer Biden over Trump on the issue. The Democrat led by double-digit margins in almost every state tested—not only in places where Democrats have been competitive, such as Michigan, Pennsylvania, Wisconsin, and Florida, but even in states where the GOP has dominated, like Texas, Georgia, Arizona, and North Carolina.

Based on their advertising spending, Democrats are betting that health care may be even more relevant right now than in years past because of the likelihood that insurance companies will consider COVID-19 a preexisting condition. “The whole ‘pre-ex’ conversation is arguably more salient in ’20 than it was in ’18, and [the possible upcoming] Court decision adds to that," says J. B. Poersch, the president of Senate Majority PAC, the principal super PAC supporting Democratic senators. Adds Rachel Irwin, the group’s communications director: “A good portion of our advertising so far has laid the groundwork on preexisting conditions with personal stories. Every single Senate race has been hammering [that].”

Confirmation hearings for a Trump-appointed justice who may provide the deciding vote to overturn the ACA could provide Democrats an unparalleled platform to keep “hammering” the message that Republican senators are threatening the law’s protections. With multiple contests now teetering on the razor’s edge, the Democrats’ prospects of winning the Senate may turn on whether they can do so.

The Democrats Supreme Court Hail Mary   19%

Updated at 10:11 a.m. ET on September 28, 2020.

It was only a matter of time, really. Ever since Senate Republicans refused to hold a vote on Merrick Garland four years ago, progressives have argued that Democrats need to wrest back control of the Supreme Court by packing it full of liberal justices. By the Democratic primary last year, the idea had gone relatively mainstream, and half of the presidential candidates expressed openness to it. Now, in the five days since Justice Ruth Bader Ginsburg’s death, calls from the left to pack the court have reached a volume that will be difficult for party leaders to ignore. Democrats have few options to try to prevent President Donald Trump from confirming his nominee, whom he plans to announce on Saturday. So they’re already gaming out how to get revenge.

If Trump confirms a new justice this year, “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Senator Ed Markey of Massachusetts tweeted over the weekend. Democrats at various levels of seniority followed suit, including House Judiciary Chairman Jerrold Nadler and Representative Alexandria Ocasio-Cortez of New York. Even Senate Minority Leader Chuck Schumer seemed receptive: “Nothing is off the table next year” if the GOP tries to fill Ginsburg’s seat, he said.

[Read: What Ruth Bader Ginsburg’s death means for America]

Aaron Belkin, a political-science professor at San Francisco State University and the executive director of the think tank the Palm Center, is grateful to see prominent Democrats finally coming around to the plan he’s spent the past year trying to advance. In 2018, Belkin founded the advocacy group Take Back the Court in response to Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh.

The trouble for Belkin and other Democrats is their goal’s political feasibility—and not just because the party has to win the Senate and the White House first. Joe Biden has shown reluctance to eliminate the filibuster, which Democrats would need to do to pass a court-expansion law, and he is outright opposed to increasing the justices’ numbers, disinclined to take any radical action that would further exacerbate partisan tensions. “We need to de-escalate, not escalate,” he said during a speech in Philadelphia over the weekend. In a local-news interview last summer, he warned that Democrats would “rue” the day they packed the Court because Republicans would simply do the same the next time they were in power.

I talked to Belkin about these objections, and asked him to lay out the case for court packing—and the effect it might have on American democracy. Our conversation has been lightly edited and condensed for clarity.

Elaine Godfrey: How would Democrats go about court packing if they’re in power?

Aaron Belkin: It’s a straightforward process, but not a politically easy process. What would have to happen is that they would need to pass a bill [to expand the Court], which means they would need to kill the filibuster. [After the law passed through both chambers of Congress,] the president would have to sign it. Then they would nominate new justices. The court size has changed six times in American history, so this has been done before.

Godfrey: Let’s say that Trump’s new nominee is confirmed. What’s a good number that the Democrats could expand to?

Belkin: I would argue that the number is six. For each of the three justices he will have appointed, you would need two justices to nullify the effect of each illegitimately appointed justice. If you just appoint one for one, then you’re not nullifying the illegitimately appointed justices.

Godfrey: So, six more, you’re saying. A total of 15.

Belkin: Yes.

Godfrey: But wouldn’t Republicans do the same thing the next time they’re in power?

Belkin: This is perhaps the No.1 concern that’s been voiced, but it doesn’t stand up to scrutiny. A couple problems with this: The first thing is that the Court has already been stolen. If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again. It would probably take a generation—25 or 30 years—for the Democrats to get the majority on the Supreme Court back. If the Republicans steal the court, then the Democrats un-steal it. And if the Republicans steal it again, then the Democrats un-steal it again. It’s much better to have that zigzag than to just have unilateral surrender.

For people who are worried about Republican retaliation, court expansion is the safest way to protect democracy and the safest way to de-radicalize the Republican Party. The party has become completely unmoored from facts and reality. Progressives have a fantasy that thrashing the Republicans at the ballot box can de-radicalize them. That’s not true. The only way to de-radicalize the Republican Party is [for Democrats] to come back into office after the 2020 election and do three things: kill the filibuster, pass a democracy-reform bill, and expand the Court. If you unrig the system, the GOP will have to be de-radicalized at least a bit in order to win elections, and that is what will make the courts safe from Republican retaliation. They’ll be less radical as a party.

[Read: The decline of the GOP]

Godfrey: But even if Republicans become “less radical” after Trump, won’t they still want to put conservative justices on the Court?

Belkin: Part of what I mean by de-radicalization is an acknowledgment that it was wrong to steal the court in 2016, and that when the Democrats un-stole the court, that was a necessary thing to do. There’s something called a “hurting stalemate” where both sides realize that, Okay, it’s been enough already; let’s reach an equilibrium. If Democrats un-steal it and unrig the system, and the GOP de-radicalizes, hopefully, wiser heads would prevail in the Republican Party. There’d be acknowledgment that, like, Okay, democracy does matter. And let’s play by the rules from now on. Even if Democrats do expand the court, there will always be Republicans who want to retaliate. But the point is that, ideally, in a de-radicalized party, those voices wouldn’t prevail.

Godfrey: It’s just really hard to imagine the Republican Party saying they “stole” those seats and were wrong for doing so.

Belkin: They’re going to lose elections if they don’t de-radicalize in a free and fair system. It’s already hard for them to win elections. Trump barely skated by in 2016. It might take a couple thrashings at the ballot box in a free and fair system for the wiser heads to prevail. But, again, if the system is unrigged, they can remain as radical as they are, but it’s going to be hard for them to win elections.

Godfrey: You’re arguing that, in order to save democracy, Democrats need to eliminate the filibuster, pass democracy reform, and expand the court. But that isn’t a given—not all Democrats are on board.

Belkin: If the party doesn’t win in 2020, and do those three steps, I would argue that democracy is effectively over. Yes, we will still have elections, and yes, Democrats will still win those elections from time to time. But Democrats won’t be allowed to govern when they win, because of obstructionism and stolen courts.

Let’s look at each step. It’s going to be hard to change the filibuster. But there has been incredibly widespread recognition among party leaders—including the most obstructionist opponents to filibuster reform like [Senators] Chris Coons and Joe Manchin—that [it] might have to go, because they’ve seen Mitch McConnell take obstructionism to historically unprecedented levels. What about the democracy [reform] bill? The first thing [Nancy] Pelosi did when Democrats took back the House, they dropped H.R. 1. The party is clearly committed to passing democracy reforms. It doesn’t mean it’ll happen, but it means that there would be a very, very, very large push.

Now what about court expansion? When I started [Take Back the Court], people thought the idea was nuts. There were zero organizations in favor of the idea. Fast-forward two years, even before Justice Ginsburg died: We have elevated the conversation to the point that 11 presidential candidates said they were open to court expansion; 17 major progressive organizations, including Sunrise [Movement] and NextGen, are calling for court expansion. We’ve moved the Overton window such that even the Democratic Party is committing on its platform to structural reform of federal courts.

That was before Justice Ginsburg died. Now, a few days later, Senator [Mazie] Hirono, Senator Markey, Representative Nadler, thought leaders like Heather McGhee [said they support packing the court]. Schumer said, “If McConnell fills this vacancy now, everything will be on the table.” That means court expansion is on the table. So I don’t think it’s an easy path. But it is a realistic path.

Godfrey: There are people who will say, “This is an explicit Democratic power grab!” What’s your response to that?

Belkin: That’s fucking bullshit. The Supreme Court is working to destroy democracy because the Supreme Court is a partisan court; the conservative majority is politicians in robes who are trying to help Republicans win elections. They don’t care about law. They don’t care about doctrine. They don’t care about fairness.

So, yes, it is the Democratic Party that would have to put in place the changes to restore democracy by killing the filibuster. It’s the Democratic Party that would come to change Senate rules, that would have to pass democracy bills like H.R. 1 and the John Lewis [Voting Rights] Act, and it would have to expand the Court because the Republican Party is trying to sabotage democracy. The point is to save democracy; the point is not to do a partisan power grab.

Godfrey: How would passing H.R. 1 make Republicans less radical?

Belkin: If [Democrats] do it right, they will provide automatic voter registration, ban hyper-partisan gerrymandering, put in place campaign-finance limitations, grant statehood to D.C. and the right of self-determination to Puerto Rico, provide a quick path to citizenship for law-abiding citizens, ensure the right of ex-offenders to vote. That’s what you would do to unrig the system. In a free and fair system, the Republican Party cannot win as often as it does. If you undo the cheating, either they lose or they de-radicalize.

Godfrey: What about other ways to reform the Court? During the Democratic primary, Pete Buttigieg proposed a different 15-justice plan to expand the Court. Others suggest term limits. Do you consider those viable options?

[Read: The Democrats discover the Supreme Court]

Belkin: We don’t have time for an academic conversation about alternatives, given that there’s no time left on the climate-change clock and that democracy is all but dead. Campaigning on simple, clear, straightforward ideas is important. Court expansion is something that everyone understands. Term limits look great on paper, but that’s not going to rebalance the courts. Term limits would not protect desperately needed change, like climate-change legislation, from [being struck down by] the Court.

Godfrey: Let’s say that we do get into this zigzag pattern. Democrats add six justices, and then Republicans add a few, and we go back and forth this way. The Supreme Court will end up having a couple dozen justices. Won’t that eventually degrade its legitimacy?

Belkin: If the Democrats kill the filibuster, pass democracy bills to restore democracy, and expand the Court, I would argue that a radicalized Republican Party is not going to be able to win elections and retaliate by packing the Court. So I guess I would question the premise of the question.

I was talking with a Harvard professor who hates my project. He thinks that Democrats have to adhere to norms, and he said to me, as painful as it is, the better option for Democrats is to “continue to allow themselves to get kicked in the face for 35 years” than to expand the Court. That’s how long it’s gonna take for the Democrats to get the Court back if they don’t expand it. I mean, do we have 35 years left on the climate-change clock? Do Black people who can’t vote have 35 years left when they shouldn’t be allowed to vote?

Photos: Remembering the Life of Ruth Bader Ginsburg   2%

Charles Dharapak / AP

The passing of U.S. Supreme Court Justice Ruth Bader Ginsburg is being marked across America, as she lies in repose today on the Lincoln Catafalque in front of the U.S. Supreme Court. Ginsburg died at her home in Washington, D.C., on September 18, at the age of 87, after a long battle with cancer. She was the 107th Supreme Court justice, and the second woman to serve on the high court. In her years on the Court, she became an influential icon to many. Chief Justice John Roberts called her “a jurist of historic stature.” Ginsburg will lie in repose at the Supreme Court today and tomorrow, then will be taken to the U.S. Capitol on Friday, where she will lie in state, becoming the first woman so honored. Collected below are images from her life, and from the memorials in recent days.

The Children Who Desegregated Americas Schools   -23%

In 1954, the Supreme Court decided that segregation of public schools was unconstitutional—but it was thousands of children who actually desegregated America’s classrooms. The task that fell to them was a brutal one.

In the years following Brown v. Board of Education, vicious legal and political battles broke out; town by town, Black parents tried to send their children to white schools, and white parents—and often their children, too—tried to keep those Black kids out. They tried everything: bomb threats, beatings, protests. They physically blocked entrances to schools, vandalized lockers, threw rocks, taunted and jeered. Often, the efforts of white parents worked: Thousands upon thousands of Black kids were barred from the schools that were rightfully theirs to attend.

But eventually, in different places at different times, Black parents won. And that meant that their kids had to walk or take the bus to a school that had tried to keep them out. And then they had to walk in the door, go to their classrooms, and try to get an education—despite the hatred directed at them, despite the knowledge that their white classmates didn’t want them there, and despite being alone. They changed America, but in large part, that change was not lasting. As they grew older, many of them watched as their schools resegregated, and their work was undone.

Those kids are in their 50s, 60s, 70s, and 80s now. Many of them are no longer with us. But those who are have stories to tell.

Here are five of them.

  • Hugh Price and his family fought for him to be one of the first Black students at his all-white high school in Washington, D.C. But once he was there, he “couldn’t wait for it to be over.”
  • Jo Ann Allen Boyce and 11 other students desegregated their high school in Clinton, Tennessee. Then the riots came.
  • Sonnie Hereford IV desegregated Alabama’s public schools in 1963. He was only 6 years old.
  • Millicent Brown changed Charleston, then watched it stay the same.
  • Frederick K. Brewington’s education came at the end of a bitter civil-rights battle that engulfed New York State, more than a decade after the Court’s Brown v. Board decision.

Conservatives' assault on the supreme court is a judicial tragedy in the making | Shira A Scheindlin  

Ramming a nominee through like this is inexcusable – and it will cement rightwing control of the courts for decades

On Saturday, Donald Trump nominated Amy Coney Barrett to become an associate justice of the supreme court, to fill the seat vacated by the death of Ruth Bader Ginsburg. In one stroke he violated long-held precedents regarding filling supreme court vacancies, undermined the confidence of the American people in the legitimacy of the court, and ensured that the court will turn back decades of progress in civil rights.

Related: Trump says overturning Roe v Wade 'possible' with Barrett on supreme court

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Trump nominates Amy Coney Barrett to US supreme court video   10%

Donald Trump has nominated appeals court judge Amy Coney Barrett to take the place of Ruth Bader Ginsburg on the US supreme court, saying he expected the appointment to be confirmed before the 3 November presidential election. Barrett is a devout pro-life Catholic and would tip the supreme court 6-3 in favour of conservatives.

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Democrats aren't anti-Catholic bigots for questioning Amy Coney Barrett | Jill Filipovic   12%

The Republican party has cannily repackaged valid scrutiny as religious bigotry. But liberals are right to ask hard questions of Trump’s pick

The latest Republican talking point: that Democrats are anti-Catholic bigots for opposing Amy Coney Barrett’s appointment to the US supreme court. Liberals have raised questions about Barrett’s membership in a conservative organization that dictates traditional gender roles (men as leaders, women as their helpmeets), and her many conservative rulings which seem to suggest that she brings her conservative religiosity onto the bench when deciding matters of law. The Republican party has cannily repackaged that as religious bigotry.

Related: Democrats on the attack after Trump tax return revelations – US politics live

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Explainer: Why the US Supreme Court is relevant to Arabs and the Middle East   2%

The US Supreme Court may seem like a domestic concern for American citizens only. But the reality is that the court, made up of nine justices, has a direct impact on several nations, including the

Voting lawsuits pile up across US as election approaches   40%

The lawsuits are all the more important because President Donald Trump has raised the prospect that the election may wind up before the Supreme Court.

Trump's Supreme Court nominee meets with top Republican senators  

The Republican party is moving as quickly as possible to install Judge Amy Coney Barrett on the US Supreme Court before the November election.

Donald Trump picks brilliant Amy Coney Barrett for US Supreme Court   6%

US President Donald Trump named Amy Coney Barrett to the Supreme Court on Saturday, setting in motion a rush by Republicans to cement a conservative majority on the court on the eve of a tense and potentially disputed US election.Trump stood alongside Barrett at a White House Rose Garden ceremony to announce his decision, calling her “one of the most brilliant and gifted minds” in the legal world.Despite strong opposition from Democrats, he predicted a “very quick” and “straightforward”…

The unmaking of the Supreme Court  

Republicans could be ushering in the end of a Supreme Court as we know it.

What to watch for in Tuesday's presidential debate  

President Donald Trump and Democratic nominee Joe Biden will have an opportunity to contrast their visions for the country in a televised debate. Likely topics include Mr. Trump’s tax history, the Supreme Court, and the coronavirus response.

Will Supreme Court fight help or hurt Trump with women? Likely both.   -16%

The Supreme Court pick is unlikely to alter the decades-old dynamic of women favoring Democrats for president by much larger margins than men.

Judge clears way for ranked choice voting in Maine   6%

A decision by the Maine Supreme Court has cleared the way for ranked choice voting to be used for the November presidential ballots. The state will be the first and only in the country to use the voting method, which reformers have long advocated for.

Planned Parenthood CEO: Trump's SCOTUS Pick Could Overturn Roe v. Wade & Kill Obamacare  

President Trump's nomination of Amy Coney Barrett to the Supreme Court could threaten reproductive rights across the U.S., according to Planned Parenthood president and CEO Alexis McGill Johnson. Barrett, who once called abortion "always immoral," would give conservatives a decisive 6-3 advantage on the top court if she is confirmed by the Senate, and President Trump has openly promoted her nomination by suggesting she would help overturn the landmark 1973 ruling in Roe v. Wade that legalized abortion in the U.S. Barrett "would be a huge threat to reproductive rights" on the Supreme Court, says McGill Johnson. "Reproductive healthcare is healthcare. And the most immediate threat that we are facing in the time of a pandemic is the fact that the ACA, which has been one of the biggest advancements for women's health across the board, is also under attack."

How "Extremist" Amy Coney Barrett Could Reshape the Supreme Court & Hand Trump the Election  

As President Trump nominates conservative federal judge Amy Coney Barrett to the Supreme Court to fill Ruth Bader Ginsburg's seat, we look at how an emboldened 6-3 conservative majority on the Supreme Court could dramatically loosen gun laws, hurt immigrant communities and play a possibly central role in deciding a close presidential election. "Her religious conservatism is not what's extreme about her. It's her actual judicial opinions," says Elie Mystal, justice correspondent for The Nation. "She does not use her religion to guide her through her decisions; she uses her extremist conservative views."

People of Praise: Former Member of Group Tied to SCOTUS Front-Runner Amy Barrett Calls It a "Cult"   -1%

As President Trump appears poised to announce a nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court, we speak with a former member of the secretive Catholic group People of Praise, known for its rigid gender roles and lifelong loyalty oaths, which apparent front-runner Judge Amy Coney Barrett is a member of. "Many call it a community, but I describe it as a cult," says Coral Anika Theill, who was a member of People of Praise from 1979 to 1984 and is now speaking out against the organization.

Headlines for September 22, 2020  

GOP, Trump Charge Forward with Effort to Replace Ruth Bader Ginsburg on Supreme Court, DOJ Designates New York City, Seattle, Portland as "Anarchist" Cities, CDC Again Retracts Information About Coronavirus on Website; HHS Head Azar Exerts Control Over FDA, 150+ Countries, Not Including the U.S., Join U.N.'s Effort to Fairly Distribute COVID-19 Vaccine, House Report Finds Immigrant Prisoners Denied Access to Essential Care, Forced into Labor, Mexican National Dies in Georgia Immigration Prison, One Week into Peace Talks, Scores Killed in Bloody Day of Fighting Across Afghanistan, 6 People Killed in Colombian Massacre as Rampant Violence Has Claimed Over 240 Lives in 2020, Calls Mount for Release of Sudanese Filmmaker and Activist Hajooj Kuka, Global Heating Sees Arctic Sea Ice Shrink to Second-Lowest Level on Record, Trump Admin Taps Climate Change Denier Ryan Maue for Top Position at NOAA, Tropical Storm Beta Makes Landfall as Record-Breaking Atlantic Storm Season Continues, Kumeyaay Land Defenders Arrested During Peaceful Border Wall Demonstration, Tohono O'odham Land Defenders in Arizona Protest Border Wall Construction on Sacred Land, Gov't Watchdog Probing Pentagon Use of Force and Interest in Deploying "Heat Rays" Against Protesters, Florida Governor DeSantis Announces Legislation to Suppress Protests, White Bar Owner in Omaha Who Killed Black Protester Dies by Suicide, Louisville Police Announce State of Emergency Ahead of Breonna Taylor Grand Jury Decision

"A National Tragedy": Ruth Bader Ginsburg's Friend & "Favorite Client" Remembers the Legal Icon   12%

U.S. Supreme Court Justice Ruth Bader Ginsburg first gained fame in the 1970s when she co-founded the Women's Rights Project at the American Civil Liberties Union and argued six gender discrimination cases before the Supreme Court. One of those cases was Weinberger v. Wiesenfeld, which centered on a widower who was refused Social Security benefits after his wife died during childbirth. We speak with Stephen Wiesenfeld, who was told his gender made him ineligible and that only women were entitled to survivor's benefits. Ginsburg argued in the Supreme Court that denying fathers benefits because of their sex was unconstitutional, and won a unanimous 8-0 decision in the case. Wiesenfeld, who would become a lifelong friend to the late Supreme Court justice, says she "took their very conservative court and taught them that the stereotypes when they hurt one gender, hurt the other gender, as well."

Remembering RBG: Legal Giant's Death Sparks Furious Fight in D.C. over Vacant Supreme Court Seat   10%

We look at the life and legacy of Ruth Bader Ginsburg, as well as the future of the Supreme Court, in a wide-ranging interview with Dahlia Lithwick, senior editor at Slate, where she is the senior legal correspondent and Supreme Court reporter. Ginsburg died September 18 at the age of 87 after serving 27 years as a Supreme Court justice, where she became the most prominent member of the court's liberal wing. Her death just 46 days before the November election sets up a major political battle over her replacement, with President Trump vowing to nominate her replacement by Saturday. In 2016, Senate Majority Leader Mitch McConnell refused to hold confirmation hearings for Merrick Garland, President Obama's pick to replace Justice Antonin Scalia, who died 269 days before the election. "Hypocrisy doesn't begin to touch on that," says Lithwick. "The court is profoundly misaligned both with popular opinion polling and with the will of this country."

Let them eat cake? Irish court finds Subway sandwiches too sugary to rise to category of bread   10%

Ireland’s Supreme Court has ruled that the buns in heated sandwiches sold by a local Subway franchisee cannot be legally considered bread as they contain five times more sugar than they should.
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Spanish Supreme Court confirms Catalan leader Quim Torra will be forced to step down, likely triggering election   40%

Spain’s Supreme Court has upheld a decision to remove Catalan separatist leader Quim Torra from his position as head of the autonomous region.
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Editorial: Amy Coney Barrett is qualified for the Supreme Court but should not be confirmed   20%

The circuit judge would cement a 6-3 conservative majority on the Supreme Court — one that might very well overturn Roe vs. Wade.

Letters to the Editor: If Democrats expand the Supreme Court, will Republicans do the same?   -2%

Any attempt by Democrats to enlarge the Supreme Court would give Republicans an excuse to further 'balance' it when they're in power.

Joe Biden and Kamala Harris don't want to talk about changes to the Supreme Court   5%

Joe Biden and Kamala Harris made it clear on Tuesday night that they don't want to talk about changes to the Supreme Court, including expanding the current nine-justice bench.

Of the 114 Supreme Court justices in US history, all but 6 have been White men  

Since the Supreme Court was established in 1789, 114 justices have served on the bench.

SC approves DGCA's proposal for air ticket refund   6%

In a major relief to passengers, whose flights got cancelled due to the Covid-19 lockdown, the Supreme Court on Thursday accepted the recommendations of the DGCA to refund ticket fares and also approved a credit shell scheme which will be valid till March 31. SC clarified that if tickets were purchased through agents, then the refund will also be done to the agents.

SC refuses to entertain plea for fixing accountability of WHO officials over Covid-19   2%

The Supreme Court Thursday refused to entertain a plea seeking direction to fix accountability of WHO officials for their alleged failure in preventing the Covid-19 pandemic in the world. The SC bench said that the plea, which had also said that China may be made to pay appropriate compensation to India for the losses incurred due to the pandemic, was not maintainable.

Japanese Government Is Ordered to Pay Damages Over Fukushima Disaster   16%

The Sendai High Court said the state and the plant’s operator must pay $9.5 million to survivors of the 2011 nuclear accident. They have until mid-October to appeal to the country’s Supreme Court.