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What Kind Of Supreme Court Justice Will Amy Coney Barrett Be? 

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It’s official: Amy Coney Barrett will be the country’s next Supreme Court justice. She was confirmed by a 52 to 48 vote margin, and will be sworn in by Justice Clarence Thomas at the White House tonight — just in time for Election Day.

Barrett’s ascension to the court was incredibly swift — her confirmation hearings started less than a month after Justice Ruth Bader Ginsburg’s death, and this is the closest to an election a Supreme Court confirmation vote has been held. Notably, though, despite this accelerated timeline, Barrett emerged relatively unscathed from her confirmation hearings. This is quite a feat considering both the partisan nature of the hearings and the looming questions over whether the rush to confirm her jeopardizes the court’s legitimacy.

Barrett’s confirmation is incredibly consequential, too, as she will likely shift the center of gravity away from Chief Justice John Roberts and toward the right edge of the court’s conservative wing, which could potentially result in rulings that are significantly outside the mainstream of public opinion.

We won’t have to wait long to see how Barrett rules, either. She faces a slew of hot-button cases right off the bat, including a dispute over religious liberty exemptions, a challenge to the Affordable Care Act and several cases involving controversial Trump administration policies — not to mention any election-related fights that make their way to the court in the next few weeks, plus the fact that Mississippi recently asked the Supreme Court to consider its 15-week abortion ban, which directly challenges Roe v. Wade.

Why Barrett is poised to remake the Supreme Court

As we’ve written before, it’s hard to know exactly how a nominee to the Supreme Court will rule until they’re actually sworn in and begin weighing in on cases. But we do have data on Barrett’s three years as a judge on the 7th U.S. Circuit Court of Appeals, and as you can see in the chart below, she was very conservative.

We looked at two separate analyses of her record on the court this month, and we found whether it was in regular opinions or in special en banc decisions in which the entire appeals court ruled together, she was consistently on the right-most edge — if not the most conservative judge on the bench. And she was especially likely to rule in a conservative direction on civil rights issues.

Those findings underscore the idea that Barrett is likely to be a reliable conservative vote on the court. And her confirmation is even more significant because she’s replacing one of the court’s stalwart liberals. If Barrett ends up being ideologically similar to Justice Samuel Alito, who is currently the second-most conservative justice on the Supreme Court, her replacement of Ginsburg could be one of the biggest ideological swings in modern court history.

In this scenario, Justice Brett Kavanaugh would replace Roberts as the court’s new median justice, which could lead to a significant rightward turn on the court, as Roberts is often the lone conservative justice to side with the liberals. He has cast several recent pivotal votes with the liberals, too, including a dispute in which the justices deadlocked 4-4 on whether to halt a Pennsylvania Supreme Court decision that allowed state officials to count ballots that arrive up to three days late. With Barrett on the court, though, Roberts would lose that “swing justice” role.

In the short term, that means election-related cases could have very different outcomes — even including a new iteration of the Pennsylvania case, which Republican officials recently brought back to the court. And in the long term, conservative legal advocates may respond by bringing even more ambitious cases, questioning long-held precedents.

The hearings could have gone much worse for Barrett — and the court

The idea of confirming anyone to replace Ginsburg before the election was quite unpopular only a few weeks ago. While it’s true that most Supreme Court confirmation hearings are pretty partisan these days, around the time Barrett was named as the nominee, a majority of Americans said they wanted the winner of the election to choose the next justice. And polling by the Economist in mid-October also found that Barrett was the most unpopular nominee in Supreme Court history.

Now, though, Americans may actually have warmed to the idea of Barrett joining the court before Election Day. According to tracking polls by Morning Consult, support for confirming Barrett rose from 37 percent when she was nominated to 51 percent after the hearings were over and a Gallup poll conducted during Barrett’s confirmation hearings found a similar result. Notably, according to that Gallup poll, this was substantially higher than the share who wanted the Senate to confirm Justice Brett Kavanaugh in 2018 (41 percent), and is even slightly higher than the support previous nominees since 1987 have received on average (48 percent).

Barrett’s confirmation wasn’t that divisive

Share of Americans who said they were or were not in favor of the Senate confirming each Supreme Court nominee

Nominee In favor Not in favor No opinion
Amy Coney Barrett 51% 46% 3%
Brett Kavanaugh 41 37 22
Neil Gorsuch 45 32 23
Merrick Garland 52 29 19
Elena Kagan 46 32 22
Sonia Sotomayor 54 28 19
Samuel Alito 50 25 25
Harriet Miers 44 36 20
John Roberts 59 22 19
Ruth Bader Ginsburg 53 14 33
Clarence Thomas 52 17 31
Robert Bork 31 25 44
Average for previous nominees 48 27 25

Data was not available for Justices Stephen Breyer, David Souter, Anthony Kennedy and Douglas Ginsburg.

Source: Gallup

To be sure, this isn’t universal support for Barrett’s confirmation. Partisan opinion on her confirmation is really divided — according to Gallup, only 15 percent of Democrats wanted the Senate to vote to confirm her, for instance. A deep partisan divide in support isn’t a good sign for the court in general either, as it can reinforce perceptions that the court is itself a partisan institution. But Barrett could have emerged a lot less popular from her hearing — which is why the level of support she does enjoy is pretty notable, especially when you consider most Americans agreed that she’d push the court to the right (54 percent in that Morning Consult poll).

Barrett will be faced with highly controversial cases immediately

Barrett could be immediately faced with tough decisions, too, including voting on the fate of ballot deadlines in several states. There are a number of important or even precedent-altering cases at stake, too, and considering that the Roberts court has already been overturning more precedents with slim 5-4 majorities than any other court in modern history, that trend could further accelerate with Barrett on the court.

The day after the election, for instance, the justices will hear a case in which they’re being asked to reconsider a 30-year-old religious liberty precedent. In that case, the justices will consider whether that precedent makes it too hard for religious people to sue for exemptions. The majority opinion in that precedent-setting case, Employment Division v. Smith, was actually written by the late conservative Justice Antonin Scalia, but four of the current conservative justices have already signaled they may be willing to strike it down. Barrett could overrule it, and make it much easier for nondiscrimination provisions to be challenged by religious litigants.

fAnd a week after the election, a case involving the constitutionality of the Affordable Care Act will come before the court, in which the justices could declare the entire law invalid. Another important signal will be whether Barrett’s presence on the court gives conservatives a fourth vote to hear a case involving Mississippi’s 15-week abortion ban, which the state attorney general described as an “ideal vehicle” for “clarifying” how the court’s precedents on abortion should be interpreted. There are also several important Trump administration policies on the docket a little later this term — including the administration’s attempt to exclude undocumented citizens from the census count used for redistricting, and whether Trump unconstitutionally commandeered Congress’s power when he diverted Defense Department funds to expand the border wall with Mexico. Given that several recent Supreme Court decisions on Trump administration policies — including an attempt to add a question about citizenship to the 2020 census — split 5-4, with Roberts casting a deciding vote with the liberals against the Trump administration, Barrett’s presence on the court could make a decision in favor of Trump more likely.1

Barrett made it through her confirmation hearings mostly without controversy, but we’ll see whether that lasts. It won’t take long to get a sense for just how far the Supreme Court’s conservatives are willing to go now that they hold a decisive majority for the first time in decades.

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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
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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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