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The most important election in modern American history


This CNN poll is encouraging, but it only underlines the importance of doing everything we can in the next four weeks to stem the tide of treason in defense of white supremacy:

Four weeks out from Election Day, Democrats remain well ahead of Republicans in a generic ballot matchup, with 54% of likely voters saying they support the Democrat in their district and 41% backing a Republican, according to a CNN poll conducted by SSRS.

This is the widest margin of support for Democrats in a midterm cycle since 2006, when at this point, the party held a whopping 21-point lead over Republicans among likely voters. That’s also when Democrats seized control of the House from Republicans, making Nancy Pelosi speaker until 2011.
This year, Democrats’ enthusiasm about their congressional vote has increased and 62% now say they’re extremely or very enthusiastic to vote, up seven points since September among Democrats and Democratic-leaning independents. Among Republicans and Republican leaning independents, enthusiasm has remained relatively steady, going from 50% in September to 52% in the most recent poll.
Democratic enthusiasm this year is more intense than it has been in previous midterm cycles, which typically engage voters less than presidential years. The 40% who call themselves “extremely enthusiastic” is the highest share to say so in a midterm election cycle since CNN first asked the question in 2009.
In fact, Democrats’ enthusiasm today more closely resembles the 2008 presidential election. Just before President Barack Obama was elected, 45% of Democrats and Democratic-leaners said they were extremely enthusiastic about voting that November. In 2008, Democrats won eight seats in the Senate and 21 in the House, as well as a victory in the presidency.
Please do what you can, whether that’s giving money or time or both in the places where it’s needed most.
Related: Jack Balkin on constitutional rot, and why it’s foolish to expect any help from the courts at moments like these.
The long-term secular trend of federal politicians making the federal courts ever more powerful means that today, in a period of advanced rot and high party polarization, courts have taken on a special role. They become the policy vanguard of the political parties rather than merely supplementary or gap-filling assistants. Courts, in other words, allow politicians to achieve their political wish lists. Of course, courts have always done this to a certain degree. But in periods of constitutional rot and high political polarization, this becomes one of their central political functions.

When courts are relatively powerful and politicians are relatively impotent, it is especially important to control the courts because the courts can do what politicians can’t do, and they can do it for a very long time.

Of course, this is precisely what conservatives complained about during the Warren Court and early Burger Court years. But it’s important to note that during those years Congress was also very active as well and passed lots of important legislation. This was a period of relatively depolarized politics in which many kinds of deals were possible between the two parties. (The great civil rights acts were bipartisan achievements, for example.) Courts worked alongside of Congress and advanced many liberal policy goals, but they were not the major vehicle of policy development. Today, it is different. The Republicans can do nothing in Congress but pass a tax cut for wealthy donors. Otherwise, their legislative program is moribund. When legislative politics stalls out, the judiciary becomes a center of policy innovation.

If we look back ten years or so, we see a trend gradually emerging. The Republicans could not repeal the McCain-Feingold campaign finance legislation, or get rid of the Voting Rights Act. But the Roberts Court took care of the problem through constitutional interpretation. The Republicans could not knee-cap class actions or assault public sector unions through legislation. But the Roberts Court did it for them.

Conservatives claimed that the Warren and Burger Courts were politicians in robes. But if so, they acted in a relatively depolarized party system in the midst of far larger reforms by the political branches.  Not so today. The courts are increasingly the main event in policy development. The phenomenon of courts as a policy vanguard makes familiar claims about the separation of law and  politics seem ludicrous. The transparent implausibility of these claims increases distrust in government and in the courts, which, in turn, exacerbates constitutional rot.

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