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American politics is about to get a lot uglier – The Boston Globe

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To win political power will mean using it brazenly, extravagantly, and without comity or consensus.

A group of protesters rally in front of Senate majority leader Mitch McConnell’s home on September 19 in Louisville, Kentucky. McConnell has said that if President Donald Trump nominates someone to take the place of Ginsburg following her death, the Senate would proceed with the nomination process despite the presidential election being less than six weeks away.Jon Cherry/Getty

The death of Supreme Court Justice Ruth Bader Ginsburg is devastating, and not simply because it is the passing of one of the most influential jurists in American history.

It is what comes next that should alarm us the most.

If we lived in a normal democracy in which all political parties abided by basic democratic norms and traditions, both presidential candidates would spend the next six weeks debating — among other issues — who they would appoint to the Supreme Court in 2021 should they win the presidential election.

But if we lived in that country, Merrick Garland would be a member of the highest court in the land.

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Instead, four years ago Republicans — led by Senate majority leader Mitch McConnell — refused to give Garland a Senate hearing. As they argued at the time, nine months before a presidential election was too soon to appoint a Supreme Court replacement for Antonin Scalia. Fast forward to 2020 and McConnell announced within hours of Ginsburg’s death that there will be a Senate vote on Trump’s pick to replace her on the Court, even though voters in some states have already begun to cast ballots.

McConnell’s move is cynical, hypocritical, and completely in keeping with the nihilism that he has brought to bear on American politics. For McConnell, norms are for the weak. Might makes right and political power is a tool to be wielded in the pursuit of ones self-interested political goals, the consequences on the legitimacy of America’s democratic institutions be damned. We saw this when Republicans pushed through Brett Kavanaugh’s nomination to the Court after credible allegations of sexual assault, and we will likely see it play out now. While it’s far from guaranteed that McConnell will persuade 49 of his other Senate Republicans to go along with his efforts to pack the Court, one would be foolish to bet against cynicism winning the day.

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If this happens, what will Democrats do in response? Should the polls hold up and they win the presidency and narrowly take control of the Senate, American politics will dramatically change. As Senate Democratic leader Chuck Schumer made clear Saturday morning, if McConnell moves forward, “…nothing is off the table.”

That means, almost certainly, an end to the Senate filibuster if Democrats win control in November. Democrats would probably move forward with statehood for the District of Columbia and Puerto Rico, which could mean four new Democratic senators. And Democrats may be emboldened to expand the Supreme Court to make up for what the party rightly perceives as the theft of two seats by McConnell and the GOP.

Democrats would have already pushed for many of these reforms before Ginsburg died. But if the GOP rams through yet another new justice, the gloves will come off — not because Senate Democrats will be furious, but because it will be the only way to hold back the bile of party activists.

This is the right thing for Democrats to do. When one party refuses to abide by democratic norms; when it acts as an agent of only its own political supporters and makes no effort to honor institutional principles; and when there is no accountability and there are no political repercussions for nefarious actions, the course forward is clear. Democrats must play the same political hardball Republicans have played for much of the past two decades.

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But we should not delude ourselves about the larger corrosive effect. For Democrats to imitate the actions of Republicans means a new era of cutthroat politics in which bipartisanship remains out the window and both political parties shove aside all of America’s political traditions. To win political power will mean using it brazenly, extravagantly, and without comity or consensus. It will complete the evolution of American government from its current state to one more representative of a parliamentary democracy in which once a party achieves power, it treats it as a mandate to put in place its political agenda lock, stock, and barrel. And when the other party achieves power, it will do the same. It’s not to say cooperation will be impossible or never happen, but rather that the system will evolve in such a way that it will not be necessary — and each party will put in place reforms to increase their power and weaken the other side. Republicans have been doing that for years. Now Democrats will likely follow their lead.

Perhaps this is the politics we need. Perhaps Americans need a starker reminder of the differences between the two parties. But the ugliness and divisiveness that will flow from this will only deepen the intense polarization that already defines American politics.

In an ideal world, Mitch McConnell would step back from the brink or enough members of the Senate Republican caucus would demand he do so. Don’t hold your breath on that happening. After all, if the last few years have taught us anything — we don’t live in that America.

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Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.

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Sports stars show political power can be built in the paint as well as at the polls – CNN

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Fresh from lifting his fourth NBA championship, LeBron James is enhancing his reputation as a de-facto civil rights leader and stoking speculation about a possible political career when he hangs up his Nikes. And hours after slotting the winner in Manchester United’s latest Champions League game this week, star forward Marcus Rashford was taking on UK Prime Minister Boris Johnson’s Conservative government over his meals for kids campaign.
Sports icons have occasionally turned an athletic platform into a political one. In the 1968 Olympics, two US athletes, Tommie Smith and John Carlos, raised a black power salute. Quarterback Colin Kaepernick sacrificed his NFL career to take a knee to protest police brutality against African Americans. Tennis champ Naomi Osaka paid homage to victims of alleged police brutality at each of her seven US Open matches in September. But many more athletes, wary of getting caught in the political crossfire or jeopardizing their multimillion-dollar endorsement deals, retreat behind their walls of PR flacks and their gated communities.
James was instrumental in opening and helping to finance a public school for underachieving, mostly minority kids in his home town of Akron, Ohio. Now, after leading NBA players in their call for justice during the Black Lives Matter movement, the Los Angeles Laker is speaking out against historic suppression of the Black vote.
“We believe that Black people, our community, we’ve been pushed away from our civic duty. We’ve been fed misinformation for many years. And I’m in a position where I can educate people,” James told The New York Times.
Rashford in action during the Premier League match between Newcastle United and Manchester United on October 17, 2020 in Newcastle upon Tyne, England. Rashford in action during the Premier League match between Newcastle United and Manchester United on October 17, 2020 in Newcastle upon Tyne, England.
Like “King James,” Rashford hasn’t forgotten where he came from. The 22-year-old has spoken of sometimes going hungry as a child in Manchester, during his campaign to force the government to provide free meals for low-income kids through the holidays. The Tory majority in the House of Commons voted against the move on Wednesday, but Rashford is refusing to give up.
“Put aside all the noise, the digs, the party politics, and let’s focus on the reality. A significant number of children are going to bed tonight not only hungry but feeling like they do not matter because of comments that have been made today,” he wrote on Twitter.
Both James — a longtime Trump foe — and Rashford have faced a backlash for their activity from head-in-the-sand critics who want sport to be a politics-free zone. But they’re showing that political power can be built in the paint and the penalty box as well as at the polls.
** Apologies to the reader who emailed to say they prefer no sports in Meanwhile — deep down, this one is really about politics.

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The ACA Case Reveals the Politics of ‘Constitutionality’ – The Atlantic

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Getty / The Atlantic

“I’d like to terminate Obamacare,” President Donald Trump said at Thursday night’s debate. He said he hoped that the Supreme Court, flush with six conservative justices after Judge Amy Coney Barrett’s likely confirmation, would take care of the job for him. “Now it’s in court, because Obamacare is no good.”

Trump’s argument is an awkward one, and not only because it’s a toxic message in the closing days of a campaign that’s occurring against the backdrop of a global pandemic. At last week’s confirmation hearings for Barrett, Trump’s Republican allies on the Senate Judiciary Committee repeatedly threw cold water on the lawsuit, which the Supreme Court will hear on November 10. As Democrats drew attention to the risk that the Supreme Court might put the law to the torch, Republicans insisted that the lawsuit was unlikely to succeed and that it was unfair to assume that Barrett would be as reckless as the man who nominated her. Democrats accused Republicans of disingenuousness; Republicans accused Democrats of fearmongering. The ensuing debate was as loud as it was unedifying.

All that noise obscured two deeper truths. The first is about the nature of constitutional change, and it helps explain why Senate Republicans have a point when they question the viability of a lawsuit whose goals they share and that the White House supports. The second is about the threat that the conservative Supreme Court poses to democracy. A Justice Barrett may be unlikely to topple the Affordable Care Act, but she’s a foot soldier in a conservative legal movement that has armed itself with the tools to subvert Congress’s ability to govern.

Roll the tape back to 2010. Minutes after President Barack Obama signed the Affordable Care Act into law, lawsuits were filed challenging the constitutionality of the individual mandate, the part of the law requiring people to secure insurance or pay a tax penalty. At the time, the cases were widely dismissed as constitutional stunts that stood no chance of success in the federal courts.

By the time the Supreme Court heard them in 2012, however, the cases had become nail-biters. That year, Jack Balkin, a Yale law professor, took a hard look at how that happened. His account of constitutional change didn’t turn on the nitty-gritty of legal doctrine. Instead, it hinged on the simple insight that “what people think is reasonable depends in part on what they think that other people think.”

Supreme Court justices are people too. That’s why moving a constitutional argument from “off the wall” to “on the wall”—to borrow Balkin’s terminology—demands more than showing that the argument is legally defensible. The justices must be reassured that the argument has enough public support that they won’t be written off as kooky or eccentric for endorsing it. The Supreme Court came to find that the Constitution protected gay rights and gun rights, for example, only after those rights had become mainstream. A similar shift in public sentiment explains how the challenge to the individual mandate became plausible.

How exactly did the challengers manage it? It wasn’t enough for conservative lawyers to make clever arguments, though that was essential. Nor was it enough for Tea Party activists to crash town halls. For Balkin, the key to the campaign’s success was the full-throated support of the Republican Party. The arguments of liberal lawyers insisting that conservatives were just making stuff up about the Constitution rang hollow when Republicans across the country, including local politicians, business leaders, and the guy on the bar stool, said otherwise. An argument can’t be crazy if half the country buys it.

The Republican Party’s political support was forthcoming because the legal challenge directly advanced the party’s agenda. Republicans might cripple a law that they deplored; failing that, they could use the challenge to focus public outrage and mobilize voters. As it happened, the Supreme Court, by a 5–4 vote, upheld the Affordable Care Act by construing the individual mandate as an exercise of Congress’s power to tax. But the political gambit worked: In 2012, Republicans made historic gains in both the House and the Senate. President Obama called it a “shellacking.”

Strictly on the legal merits, this latest challenge to the individual mandate is more absurd than the first one. In 2017, when Congress eliminated the tax penalty for going without insurance, it left in place language saying that people “shall” buy insurance. With nothing to back it up, that instruction lost its teeth. But the challengers—a group of red states—have argued that Congress, by retaining that language, must have meant to coerce people into buying insurance.

The upshot is that, by eliminating the tax penalty for not having insurance, Congress made the individual mandate more coercive—and thus unconstitutional. Even more radically, the challengers say that the constitutional flaw in the individual mandate requires unraveling the entire Affordable Care Act. Neither of these arguments is defensible.

But the case’s doctrinal weakness is not what most sharply distinguishes it from the first Obamacare suit. Indeed, the arguments are coherent enough to have persuaded each of the three Republican-appointed judges who have heard the case so far. The biggest difference is that the conservative political establishment that did so much to make the last Obamacare case seem plausible, even inevitable, has not laid the same groundwork here. The case is still off the wall.

The first sign that something was different about this lawsuit came in 2018, just months after it was filed. Instead of avoiding a debate over health reform, as they had before, Democratic Senate candidates used their opponents’ support for the lawsuit as a cudgel. Joe Manchin of West Virginia fired a shotgun at a copy of the complaint; Claire McCaskill of Missouri ran ads excoriating her opponent, Josh Hawley, for joining a case that would rip protections from people with preexisting conditions.

Hawley set the script for how Republicans would respond to these attacks. They would ignore the lawsuit, not defend it, and press the misleading talking point that they support protections for people with preexisting conditions. Protective of his Senate majority, Mitch McConnell damned the lawsuit with faint praise, saying only that there was “nothing wrong with going to court. Americans do it all the time.”

The pattern has held this election cycle. Embattled Senator Cory Gardner of Colorado, for example, has refused to say where he stands on the case. Instead, he released a campaign video promising to maintain preexisting-condition protections “no matter what happens to Obamacare.” When Democrats forced a vote on whether to bar Trump’s Justice Department from supporting the lawsuit, Gardner and five other incumbents in close elections broke from their party to side with Democrats. Republicans aren’t running on their party’s support for the lawsuit. They’re running away from it.

The only major exception is President Trump himself. Indeed, the White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case and put it on the wall. But that bid failed: The case was just too radioactive for most Republican officeholders. Even Attorney General Bill Barr has urged the president to moderate his position. A more prudent president probably would have taken that advice.

If the lawsuit is such a liability for Republicans, why was it brought in the first place? The answer is that what’s bad for the party may still be good for some politicians. Every one of the red-state attorneys general who brought the lawsuit has ambitions for higher office. But winning a gubernatorial race in Utah or Texas means winning a Republican primary, and the primary electorate in these states is much more conservative than the general. It might be advantageous for those politicians to press a position that’s bad news for Republican incumbents.

This puts Republican leaders in a bind. Without getting crosswise with the White House, they are trying to signal as loudly as they can that they would prefer the lawsuit to go away. That effort reached almost comic proportions during the Barrett hearings. McConnell said that “no one believes the Supreme Court is going to strike down the Affordable Care Act.” Senator Lindsey Graham, the chairman of the Judiciary Committee, emphasized that severability doctrine requires judges “to save the statute, if possible.” Senator Chuck Grassley said that it was “outrageous” to think that Barrett would invalidate the law, because, “as a mother of seven, [she] clearly understands the importance of health care.”

The Supreme Court is sure to get the message. During the first Obamacare case, groups affiliated with the Republican challengers filed 59 amicus briefs, including one from the Chamber of Commerce and another on severability from McConnell and dozens of Republican senators. This time around, only five amicus briefs were submitted to support the lawsuit, all from marginal players in the Republican political ecosystem. McConnell is sitting this one out.

The Supreme Court would thus be going out on a limb were it to invalidate all or part of the Affordable Care Act. It may still do so; we’re all just guessing. But without a full-court press from the Republican Party, a result like that couldn’t be spun to the public as a principled constitutional holding. Even to Republicans, it would look like rank partisanship. And the justices know that Republicans would bear responsibility for the fallout.

Although the prospects of this particular lawsuit are dim, however, the Democrats were right to focus on it during Barrett’s hearing. To begin with, the case serves as a reminder of all the other cases about health care that are coming down the pike—and not just those about abortion. The Supreme Court, for example, will decide in the coming weeks if it will hear a case about whether 19 states can impose work requirements on Medicaid beneficiaries. The U.S. Court of Appeals for the D.C. Circuit said no, effectively preventing hundreds of thousands of people from losing insurance. A Supreme Court packed with a conservative supermajority could—and probably would—flip that decision.

This latest Obamacare case also stands in for all the cases to come involving progressive legislation. Judge Barrett has been pretty candid that she would have sided with the challengers in the first lawsuit challenging the individual mandate. If she, not Justice Ruth Bader Ginsburg, had been sitting on the Court back in 2012, the Affordable Care Act would now be in ashes.

That should teach us something about the reception that major legislation passed by a Democratic-controlled Congress is likely to receive on a 6–3 Supreme Court. Republican officeholders may have mixed feelings about this case, but they will leap to convince their conservative constituents of the unconstitutionality of Medicare for All or a new Voting Rights Act or the Green New Deal. The resulting mobilization will make the Supreme Court receptive to inventive arguments that target those laws or frustrate their implementation.

Making the Affordable Care Act the centerpiece of the Barrett hearings was thus apt—not because the law itself is in serious jeopardy, but because it symbolizes the risk of giving a veto over progressive legislation to a conservative supermajority on the Supreme Court. The justices’ views about what counts as reasonable, like anyone’s, are powerfully shaped by the political debates of our time. If Barrett is confirmed, the views of two-thirds of those justices will be shaped by a Republican Party that represents less than half the country.

That’s not just a problem for Democrats. It’s a problem for democracy.

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This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

Nicholas Bagley is a law professor at the University of Michigan.

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Transcending politics – Northwest Arkansas Democrat-Gazette

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It is a phrase that has been continuously invoked by Democratic and Republican leaders. It has become the clearest symbol of the mood of the country, and what people feel is at stake in November. Everyone, it seems, is fighting for it.

“This campaign isn’t just about winning votes. It’s about winning the heart and, yes, the soul of America,” former Vice President Joe Biden said in August at the Democratic National Convention, not long after the phrase “battle for the soul of America” appeared at the top of his campaign website, next to his name.

A recent campaign ad for President Donald Trump spliced videos of Democrats invoking “the soul” of America, followed by images of clashes between protesters and police and the words “Save America’s Soul,” with a request to text “SOUL” to make a campaign contribution.

That the election has become a referendum on the soul of the nation, suggests that in an increasingly secular country, voting has become a reflection of one’s individual morality — and that the outcome hinges in part on spiritual and philosophical questions that transcend politics: What, exactly, is the soul of the nation? What is the state of it? And what would it mean to save it?

The answers go beyond a campaign slogan, beyond politics and November, to the identity and future of the American experiment itself, especially now, with a pandemic that has wearied the country’s spirit.

“When I think of soul of the nation,” Joy Harjo, the U.S. poet laureate and a Muscogee (Creek) Nation member, said, “I think of the process of becoming, and what it is we want to become. That is where it gets tricky, and that is where I think we have reached a stalemate right now. What do people want to become?”

Harjo said the country’s soul was “at a crucial point.”

“It is like everything is broken at once,” she said. “We are at a point of great wounding, where everyone is standing and looking within themselves and each other.”

In Carlsbad, Calif., Marlo Tucker, the state director for Concerned Women for America, has been meeting regularly to pray with a group of a dozen or so women about the future of the country. The group has been working with other conservative Christian women to register voters.

“It really comes down to what do you stand for, and what do you not stand for,” she said.

“I know this is a Christian nation, the Founding Fathers were influenced by the biblical values,” she said. “People are confused, they are influenced by this sensationalism, they are angry, they are frustrated. They are searching for hope again in government, they are searching for leaders who actually care for their problems.”

THE BODY POLITIC

The soul, and the soul of the body politic, is an ancient philosophical and theological concept, one of the deepest ways humans have understood their individual identity, and their life together.

In biblical Hebrew the words translated as soul, nefesh and neshama, come from a root meaning “to breathe.” The Genesis story describes God breathing into the nostrils of man, making him human.

The meaning echoes through today, in a pandemic that attacks the respiratory system and in police violence against Black people crying out, “I can’t breathe.”

Homeric poets saw the soul as the thing humans risk in battle, or the thing that distinguishes life from death. Plato wrote of Socrates exploring the connection between the soul and the republic in creating the virtue of justice. For St. Augustine, who wrote “The City of God,” the city could be judged by what it loves.

The soul of the nation is “a very ancient trope that is revived when all sorts of cultural ideas are in flux,” Eric Gregory, professor of religion at Princeton University, said. “It reveals something about the current political conversation, in times of crisis and change, a corruption of sickness.”

Often we stress systems and institutions, he said, but in the Trump era there has been a return to ancient concepts about the welfare of the city, where politics is about right relationships. “In ancient politics the health of society had a lot to do with the virtue of the ruler,” Gregory said.

In the United States, the question of who could define the soul of the nation was fraught from the start, from the forced displacement of American Indians to the enslavement of Africans.

And the state of the soul of the nation has often been tied to the country’s oppression of Black people. Abolitionists like Frederick Douglass fought for an “invincible abhorrence of the whole system of slaveholding” to be “fixed in the soul of the nation.” Lyndon B. Johnson said the country found its “soul of honor” on the fields of Gettysburg. When the Rev. Martin Luther King Jr. and other civil rights leaders formed what is now the Southern Christian Leadership Conference in 1957, they made their founding motto “to save the soul of America.”

‘BATTLE FOR THE SOUL’

This year Trump has positioned himself as the defender of a Christian America under siege. “In America, we don’t turn to government to restore our souls, we put our faith in Almighty God,” he said at the Republican National Convention. Franklin Graham, one of his evangelical supporters, wrote last year that this age is “a battle for the soul of the nation,” as the original “moral and spiritual framework, which has held our nation together for 243 years, is now unraveling.”

For Biden, the soul of the nation came into focus after the deadly white nationalist rally in Charlottesville, Va., three years ago. “We have to show the world America is still a beacon of light,” he wrote at the time.

Amid questions of the soul, voters have problems they want solved, and systems they want changed.

North of Boston, Andrew DeFranza, executive director of Harborlight Community Partners, an organization that develops inexpensive housing, reflected on the disastrous impact of the coronavirus pandemic for many people, from essential workers to people with disabilities. The country’s soul is disoriented, adversarial and tired, he said.

“I don’t think Group A is going to beat Group B and everything is going to be fine,” he said of the election. “We are eager to see political leaders at every level regardless of party demonstrate concrete, actionable plans to address these issues of inequity around health and race, and to do so in a way that is concrete and has outcomes to which they can be accountable.”

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Protesters watch a fireworks display above the White House after President Donald Trump accepted the Republican presidential nomination during the final night of the Republican National Convention, in Washington, on Aug. 27. The election has become a referendum on the soul of the nation, suggesting that in an increasingly secular country, voting has become a reflection of one’s individual morality — and that the outcome hinges in part on spiritual and philosophical questions that transcend politics.
(The New York Times/Erin Schaff)

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