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How Amy Coney Barrett Could Change the Supreme Court

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Tomorrow will mark the start of what could be one of the swiftest Supreme Court fights in modern history. On Saturday, just a week after the death of Justice Ruth Bader Ginsburg, President Trump is expected to announce his nominee for her replacement: Judge Amy Coney Barrett, who is currently serving on the 7th Circuit Court of Appeals.

The nomination battle over Barrett will be bitter.

If she is confirmed — and right now, Republicans have the votes — her presence on the court will give the conservative wing a solid 6-3 majority, allowing the other conservative justices to bypass Chief Justice John Roberts. Or, put another way, Roberts will no longer be the court’s median. (He has cast several pivotal votes with the liberal justices over the years, often out of apparent concern for the court’s institutional legitimacy.)

Barrett’s appointment marks an enormous shift in the Supreme Court’s center of gravity. According to one estimate of her ideological leanings, Barrett will be the third-most conservative justice on the court, just to the left of Justices Samuel Alito and Clarence Thomas, and to the right of Trump’s two previous nominees, Justices Neil Gorsuch and Brett Kavanaugh. That’s a best-case scenario for liberals, too. Several experts told me that based on Barrett’s previous rulings as a federal judge and writings as a law professor, she could end up to the right of Alito — or even Thomas.

But even in that third-place slot, Barrett replacing Ginsburg is one of the largest swings on the modern court since 1953:

Big swings in the court’s makeup are rare

Supreme Court justice replacements by the biggest changes in ideological rank, where 1 is most liberal and 9 is most conservative

the biggest shifts on the modern supreme Court
term Justice Rank Replacement rank change
1991 Marshall 1 Thomas 9 +8
1969 Warren 2 Burger 9 +7
2020 Ginsburg 2 Barrett 7 +5*
1969 Fortas 3 Blackmun 8 +5
1990 Brennan 2 Souter 5 +3
1962 Frankfurter 8 Goldberg 5 -3
1965 Goldberg 5 Fortas 2 -3

*Estimated change, based on JCS score
When there were more than nine justices in a term, we dropped the justice(s) who voted in the fewest cases (e.g., O’Connor in 2005, Douglas in 1975).

Source: Martin-Quinn scores

Of course, it’s difficult to predict how any given nominee will vote once she is on the court, and in the past, several of the court’s most liberal justices were appointed by Republican presidents.George H.W. Bush and Gerald Ford, respectively) but were anchoring the left wing of the court by retirement.

“>1 But over the past several decades, the conservative legal movement has worked to cultivate a stable of potential justices who are consistent ideological conservatives. Barrett is in many ways the poster child for that effort.

Trump has even said that he was “saving” Barrett for Ginsburg’s seat. That’s because Barrett is a favorite of conservative Christians in particular, and is widely seen as a justice who would be willing to significantly expand states’ ability to restrict abortion access, or even vote to overturn Roe v. Wade, the 1973 ruling that established a constitutional right to abortion. She also criticized Roberts’s 2012 vote to uphold the Affordable Care Act in a recent law review article, which is significant if she’s confirmed by early November, as the Supreme Court is hearing a challenge to the law a week after the election.

“Everything about her screams ‘reliable conservative,’” said John Kastellec, a politics professor at Princeton University who studies Supreme Court nominations. “If you wanted a person who seems like a very safe bet to strike down Roe v. Wade, she’d be it.”

So it’s hard to imagine that Barrett won’t turn out to be the steadfast conservative her boosters are hoping for — and that’s a point Democrats are likely to drive home during her confirmation hearings. This line of attack isn’t without risks for Democrats, though. When Barrett was nominated to the 7th Circuit in 2017, she was criticized for her conservative ideology, but that backfired somewhat on Democrats, in part because Sen. Dianne Feinstein suggested during the hearings that Barrett, a Catholic, would be guided by “dogma” in her judicial decision-making — a comment that many religious conservatives saw as an anti-Catholic dog whistle.

But this time around, Kastellec and other experts told me, Democrats are likely to steer clear of attacking Barrett on personal traits, and instead emphasize what a hard conservative swing on the court could mean for abortion, the Affordable Care Act, gun restrictions, and a host of other liberal precedents. Barrett is young, too. At 48, she could be on the court for decades to come.

That means the confirmation hearings, which are likely to start around October 12, will probably be extremely rancorous. But it’s doubtful that would stop the GOP from steaming ahead with a vote on Barrett’s nomination after only a few weeks of deliberation. An ambitious timeline like that seems very possible, since Senate Republicans currently have a solid majority willing to vote on Trump’s pick for the Supreme Court even before Barrett was named. And several Republicans, including Trump, have indicated that they want to make sure the vote happens before Election Day so that the new justice is seated in time to resolve any election-related disputes — potentially giving Trump’s new nominee enormous power over the result of the election.

The rush to confirm a new justice is something of a gamble, electorally speaking, however. It could galvanize some religious conservatives and other Republican stalwarts who care a lot about judicial nominations, but it could also turn off other voters, since recent polls have indicated that many Americans are not enthusiastic about the idea of confirming a new Supreme Court justice so close to the election. But having a solid 6-3 conservative majority on the court is a big enough win for Republicans that they may be willing to risk a lot to achieve it.

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Toronto FC hoping to make MLS Cup run having spent much of 2020 far from home

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On a recent Thursday in Hartford, Conn., Toronto FC goalkeeper Quentin Westberg pondered the dichotomy of wanting to reach MLS Cup on Dec. 12, but also desiring to see his family again. Meanwhile, Jim Liston, the team’s director of sports science, was planning a trip to Lowe’s to buy 15 garbage cans so players could have an ice bath after training. As for manager Greg Vanney, he was fretting about his team’s health and the lack of practice time their schedule was affording.

Such is the life of a team as it attempts to not only navigate its way through the COVID-19 pandemic, but has been forced to do it away from home.

Due to travel restrictions between the U.S. and Canada, TFC — like the league’s other two Canadian teams, Montreal Impact and Vancouver Whitecaps — set up a “home” base in the U.S. for the remainder of the season; Toronto were stationed in Hartford. (Vancouver Whitecaps took roost in Portland, ground-sharing with Timbers, while Montreal Impact split use of New York Red Bulls’ facilities in Harrison, N.J.) This was on top of nearly every team spending nearly a month inside a bubble back in July at the MLS is Back Tournament outside Orlando, Florida.

The Reds spent about seven weeks back in Toronto as they played a series of matches against Canadian teams. In mid-September, the remainder of the regular season — and the temporary move to Hartford — beckoned. The vagabond nature of the campaign is what led Liston to joke that he was willing to discuss “whatever five seasons” the team has been through so far. But for Vanney and the players, the campaign has required a special kind of focus.

“A lot of what we’ve done here, and what we try to preach here is just control the controllables, and don’t get too drawn into the things you can’t,” Vanney told ESPN. “Roll with it, and make the best out of whatever the situation is.”

Stream FC Daily on ESPN+
– 2020 MLS Playoffs: Who’s in, schedule and more
– MLS on ESPN+: Stream LIVE games and replays (U.S. only)

Toronto has largely succeeded in spite of its odyssey. While there was disappointment at missing out on the Supporters’ Shield to the Philadelphia Union, TFC went 7-3-2 during its Hartford sojourn and finished with the second-best record in the league. But the challenges have still been immense. Simply being out of one’s home environment is difficult enough, but the time spent away from family and loved ones weighs heavy on the psyche, even as Vanney has given players the occasional trip back to Toronto — under quarantine — to reconnect with loved ones.

“It’s just very different, very challenging and emotionally exhausting,” Westberg said of his experience while based in Hartford.

Westberg has arguably had it tougher than most. The TFC goalkeeper is married with four children, including a baby girl who was born in June. For that reason, Westberg and his wife, Ania, made the decision at the end of September that it would be better for her and their kids to head back to his native France so they could be surrounded by family. Westberg called it “the least bad decision,” but there are difficulties nonetheless.

“I’m a very even person, and this year has challenged me a lot,” he said. “I’m still pretty even, but I keep a lot to myself and for sure there’s some difficult days, seeing your family [struggle] from your absence.”

The inability to be home has affected the players and staff in other ways. In Toronto, there are ways of disengaging from the game. Being with friends, loved ones or even in familiar surroundings can be the best medicine in terms of forgetting a bad game or training session. But in Hartford, at the team’s hotel, that escape is nearly impossible even as players try to distract themselves by reading or taking online classes.

“You don’t really unplug,” Westberg said. “You FaceTime family, or this or that, but it’s too short. You’re 100 percent focused on your soccer, and your whole day basically relies on being ready for whatever soccer activity that you have next, whether it’s practice or game. It’s good for your physique, it’s optimal for the way you eat and the way you [train]. But mentally, you’re not as fresh as your body.”

That isn’t to say there are only negatives to the separation. There is also an us-against-the-world mentality that Toronto has adopted, given that their players and personnel are experiencing the season in a way that is vastly different than most other teams. The team staff has done what it can to make their surroundings a home away from home, whether it’s personalizing the locker rooms at Rentschler Field or having hotel staff brand the surroundings in TFC colors. The hotel went so far as to bring in a barista who could consistently give the players their coffee fix. Supporters groups have even sent down banners in a bid to convey the fact that the players are remembered.

The care that TFC takes for players has extended to families back home, with the club supplying meals to loved ones three times a week.

On the logistical side, Liston made sure that one of the gyms used at MLS is Back was brought to TFC’s hotel in Hartford, and he remarked that the food at the hotel is “arguably the best we’ve ever had on the road.”

There have also been efforts to create new routines. Assistant coach Jason Bent, aka DJ Soops, has been in charge of the pregame music selection for the past 18 months — no easy feat for a squad that has a considerable international presence. In Hartford, Bent has set aside Thursday nights to spin music in one area of the hotel. He’ll even go live on Instagram or Twitch for those who prefer to relax in their rooms.

“[We] opened it to players and staff and basically anyone that’s part of our bubble to come relax, listen to music and just enjoy each other’s company,” Bent said. “I enjoy making people happy so if it’s helping everyone even in the slightest, I have no problem arranging the set and spinning.”

For Vanney, the pandemic and operating outside of the team’s home market has meant any number of challenges. He said the team has used three different training facilities in Hartford, with varying field conditions. He recognizes that the trips home are vital for the mental health of his players and staff, but any breaks also mean less time spent on the practice field. The compressed schedule, which at times involved games every three or four days, has had an impact as well. Even the best-laid plans in terms of squad rotation were impacted as minor injuries began popping up.

“We end up with a lot of guys in different positions because they need special kinds of treatment or care to help them get fit and back to health,” Vanney said. “So it ends up being a lot of different things kind of going on all at once, and that’s been the challenge of it.”

Recovery from matches has been complicated by the fact that TFC doesn’t have access to the same level of facilities that it does at home — hence Liston’s emergency trip to Lowe’s to fashion impromptu ice baths for the players. Then there are the different ways the players occupy themselves on the road as compared to home, especially amid the pandemic.

“There’s really no life outside of the hotel,” Liston said. “[At home], you may go walk the dog in the afternoon or go for a walk with your wife or friend or girlfriend or family and you’re out and about. The recommendation [here] is to kind of stay put. So you’ve got a really active population and pro athletes, who we’re asking them to be sedentary the rest of the time, kind of stay in the hotel from a COVID and safety standpoint. That’s not optimal for recovery either.”

There are also the creature comforts of home that are no longer available on the road, which can impact sleep.

“Sleep is the number one tool for recovery, and that’s definitely been a challenge,” Liston said. “We do well-being questionnaires and the scores on quality of sleep, and hours of sleep, just drop.”

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Tom Barlow and Brian White seal Toronto’s fate in a 2-1 win for New York Red Bulls. Watch MLS on ESPN+.

Another change has been same-day travel, which has drawn mixed reactions from the TFC players and staff. Vanney and Westberg are generally in favor, saying it reminds them of when they each played in France. Flying back the same night also means a training day isn’t lost. Liston has a different perspective in that he prefers arriving the day before, and then leaving the same day.

“I think [same-day travel] makes for a really long day,” he said. “And there’s definitely a negative impact on performance, taking three bus rides and a plane ride before your game. You’re getting home — it can be 12:30, but it could also be 1:30 in the morning, and that’s where you know our well-being scores and sleep hours and quality just disappear. When you have so many games in succession, you can’t make up the sleep.”

With the playoffs set to begin for TFC on Nov. 24, the end is in sight, even as it makes for a complex — and even conflicting — set of emotions.

“This is the tricky part. I miss them a lot,” Westberg said of his family. “But in a way I want to see them as [late] as possible in December, because obviously, there’s this idea that we want to do well in the playoffs and we want to keep going. TFC has a history of setting high standards and high expectations. It’s a heavy load to carry but also an exciting one.”

Win or lose, it’s a season they’ll never forget.

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Bettman: NHL is mulling temporary realignment

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The NHL is considering a temporary realignment of its teams for the 2020-21 season due to COVID-19 travel restrictions, according to commissioner Gary Bettman.

Bettman said Tuesday that restrictions on travel across the Canadian border, as well as “limitations in terms of quarantining when you go from certain states to other states” within the United States, could mean the NHL creates a more regionalized alignment for its upcoming season.

“As it relates to the travel issue, which is obviously the great unknown, we may have to temporarily realign to deal with geography, because having some of our teams travel from Florida to California may not make sense. It may be that we’re better off — particularly if we’re playing a reduced schedule, which we’re contemplating — keeping it geographically centric and more divisional-based; and realigning, again on a temporary basis, to deal with the travel issues,” Bettman said during a 2020 Paley International Council Summit panel with fellow commissioners Adam Silver of the NBA and Rob Manfred of MLB.

The NHL board of governors has a meeting scheduled for Thursday which will provide a progress report and possible recommendations for a season format, based on talks between the league and the NHL Players’ Association. The target date for starting next season remains Jan. 1.

Bettman said the league is considering a few scheduling options for the 2020-21 season. Something that’s off the table: playing the entire season in the kind of bubbles the NHL had in Toronto and Edmonton, Alberta, to complete last season. But Bettman said teams opening in their own arenas is a possibility, along with a modified bubble.

“We are exploring the possibility of playing in our own buildings without fans [or] fans where you can, which is going to be an arena-by-arena issue. But we’re also exploring the possibility of a hub. You’ll come in. You’ll play for 10 to 12 days. You’ll play a bunch of games without traveling. You’ll go back, go home for a week, be with your family. We’ll have our testing protocols and all the other things you need,” he said.

Bettman also indicated that the NHL is exploring “a hybrid, where some teams are in a bubble, some teams play at home and you move in and out.”

The NBA’s board of governors unanimously approved a deal with the players’ union that sets the stage for a season that will open on Dec. 22 and with a reduced schedule of 72 games. Silver said that the commissioners are in communication on COVID-19-related issues, especially the NBA and the NHL, since the two leagues’ teams share arenas and, in some cases, team owners.

Silver said he senses that the NBA will have fans in many of its buildings this season.

“We’re probably going to start one way, where we’re maybe a little bit more conservative than many of the jurisdictions allow,” he said. “What we’ve said to our teams is that we’ll continue to work with public health authorities. Arena issues are different than outdoor stadium issues. There will be certain standards for air filtration and air circulation. There may be a different standard for a suite than there will be for fans spaced in seats.”

Silver said there will be standardized protocols that are consistent from arena to arena, such as proximity between players and fans: “In certain cases, for seats near the floor, we’re going to be putting in testing programs, where fans will certify that they’ve been tested — some within 48 hours, some within day of game.” While Silver supported a continued expansion of the NBA postseason through its play-in tournament, Bettman said that he’s not in favor of expanded playoffs or “playing with the fundamentals of the game.” The NHL had 24 teams in its postseason last summer.

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The Battleground States Where We’ve Seen Some Movement In The Polls

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With apologies to The Raconteurs, the presidential race continues to be “steady as she goes,” with little sign of tightening despite a plethora of new polls. FiveThirtyEight’s presidential forecast gives Joe Biden an 89 in 100 shot at winning the election, while President Trump has just an 11 in 100 chance. This makes Biden the favorite, but still leaves open a narrow path to victory for Trump, for whom a reelection win would be surprising — but not utterly shocking.

At the same time, we also have fewer polls from live-caller surveys, which have historically been more accurate and have shown slightly better numbers for Biden, than polls that use other methodologies, such as polls conducted primarily online or through automated telephone calls. Nevertheless, while the overall picture has shifted only a little in recent days, a few battleground states have seen at least some movement in their polls, which has slightly altered the odds Biden or Trump wins in each of those places.

What election stories need to get more coverage | FiveThirtyEight Politics Podcast

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