Ian Millhiser writes:

Let’s not beat around the bush. It is more likely than not that Donald Trump will return to the White House next year. Right now, polling averages show Trump with a slight popular vote lead over incumbent President Joe Biden. And, even if Biden overcomes this small deficit, the Electoral College system effectively makes Trump votes count more than Biden votes.

Although there may be signs that the Republican Party’s advantage in the Electoral College is fading, that advantage was substantial in the last two presidential elections. Democrat Hillary Clinton beat Trump in 2016 by more than two points in the popular vote, but still lost the Electoral College. Biden beat Trump by more than four points, but would have lost if a small number of votes had flipped to Trump in a handful of states.

That means that, if Justices Sonia Sotomayor or Elena Kagan remain on the Supreme Court past this year, they risk allowing their seat to be filled by a convicted felon who tried to overthrow the duly elected government of the United States of America, inciting an insurrection at the United States Capitol in the process.

The full picture for liberals on the Supreme Court is even grimmer. It is still possible that Biden will prevail this November — polls fairly consistently suggest that the most engaged voters prefer the incumbent — but Democrats need a miracle to keep their majority in the malapportioned United States Senate.

Senate malapportionment is such a liability for Democrats that Republicans would not have controlled the Senate at all since the late 1990s if Senate seats were distributed fairly based on population. In the likely event that Democrats lose control of the Senate in November, they may not have a realistic shot at regaining the Senate again until 2030 or even later — and that’s assuming that population shifts do not place the Senate permanently in Republican Party hands.

We already know that, if Republicans control the Senate, no Democrat is likely to be confirmed to the Supreme Court. Just ask Merrick Garland.

That means that, unless Sotomayor (who turns 70 this month) and Kagan (who is 64) are certain that they will survive well into the 2030s, now is their last chance to leave their Supreme Court seats to someone who won’t spend their tenure on the bench tearing apart everything these two women tried to accomplish during their careers. [Continue reading…]