Tuesday, October 13, 2020

'HANDMAIDEN' AMY CONEY BARRETT - RIGHT WINGER GAMING IT LIKE ONLY A LAWYER CAN? - OR JUST ONE MORE NEO-FASCIST?

SHE IS A LAWYER! THE TRUTH IS WHAT EVER SHE SAYS IT IS BUT ONLY FOR THAT DAY!

Barrett: I Can Set Aside My Catholic Beliefs Regarding Any Issue Before Me
By Melanie Arter | October 13, 2020 | 10:00am EDT

 
Supreme Court nominee Judge Amy Coney Barrett speaks during the second day of her Senate Judiciary committee confirmation hearing on Capitol Hill on October 13, 2020 in Washington, DC. - President Donald Trump's US Supreme Court nominee Amy Coney Barrett faces a sharply divided Senate October 13, 2020 for her first question-and-answer session, with Republicans praising her faith and qualifications and Democrats set to bombard her over healthcare. (Photo by KEVIN DIETSCH
Supreme Court nominee Judge Amy Coney Barrett speaks during the second day of her Senate Judiciary committee confirmation hearing on Capitol Hill on October 13, 2020 in Washington, DC. (Photo by KEVIN DIETSCH

(CNSNews.com) – Supreme Court nominee Amy Coney Barrett told the Senate Judiciary Committee on Tuesday that she can and has set aside her Catholic beliefs regarding issues before her.

In an exchange with Chairman Lindsey Graham (R-S.C.), Barrett was asked about her Catholic faith and whether she can set aside her religious beliefs when deciding on issues before her.


“I can. I have done that in my time on the 7th Circuit. If I stay on the 7th Circuit, I'll continue to do that. If I'm confirmed I to the Supreme Court, I will do that still,” she said.

Graham also asked her about the Supreme Court decisions that led to the legalization of abortion, same-sex marriage whether she owns a gun, and whether she can fairly decide gun cases, and the Citizens United case.

Barrett said she owns a gun and can fairly decide such cases.

On abortion, Graham asked Barrett if she would listen to both sides if litigation on his bill, which bans abortion on demand after 20 weeks of pregnancy.
Barrett answered: “Of course, I'll do that in every case.”

 

GRAHAM: Let's talk about the two Supreme Court cases regarding abortion. What are the two leading cases in America regarding abortion? 

BARRETT: Most people think of Roe V. Wade, and Casey is the case after Roe that preserved Roe’s central holding but grounded it in a slightly different rationale.

GRAHAM: So what is that rationale? 

BARRETT: Rationale is that the state cannot impose an undue burden on a woman's right to terminate a pregnancy. 

GRAHAM: Unlike Brown, there are states challenging on the abortion front. There’re states that are going to a fetal heartbeat bill. I have a bill, Judge, that would disallow abortion on demand after 20 weeks, the fifth month of the pregnancy. We're one of seven nations in the entire world that allow abortion on demand at the fifth month. The construct of my bill is because a child is capable of feeling pain in the fifth month, doctors tell us to save the child's life, you have to provide anesthesia if you operate, because they can feel pain. The argument I’m making is if you have to provide anesthesia to save the child’s life, ‘cause they can feel pain, it must be a terrible death to be dismembered by an abortion. That's a theory to protect the unborn at the fifth month. If that litigation comes before you, will you listen to both sides? 

BARRETT: Of course, I'll do that in every case. 

GRAHAM: So I think 14 states have already passed a version of what I described. So there really is a debate in America still unlike Brown versus Board of Education about the rights of the unborn. That's just one example. So if there is a challenge coming from a state, if a state passes a law and it goes into court where people say this violates Casey, how do you decide that? 

BARRETT: Well, it would begin in a district court in a trial court. The trial court would make a record. The parties would litigate and fully develop that record in the trial court. Then it would go up to an appeals court that would review that record looking for error, and then again, it would be the same process. Someone would have to seek certiorari at the Supreme Court. The Supreme Court would have to grant it, and at that point it would be the full judicial process. It would be briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion, really digging down into it. It's not just a vote. You all do that. You all have a policy, and you cast a vote. The judicial process is different. 

GRAHAM: Okay. So when it comes to your personal views about this topic, do you own a gun? 

BARRETT: We do own a gun. 

GRAHAM:  Okay. All right. Do you think you could fairly decide a case even though you own a gun? 

BARRETT: Yes. 

GRAHAM:  You're Catholic. 

BARRETT: I am. 

GRAHAM:  We've established that. The tenets of your faith mean a lot to you personally. Is that correct?
BARRETT: That is true.
GRAHAM: You've chosen to raise your family in the Catholic faith, is that correct? 

BARRETT:  That's true. 

GRAHAM:  Can you set aside whatever Catholic beliefs you have regarding any issue before you? 

BARRETT: I can. I have done that in my time on the 7th Circuit. If I stay on the 7th Circuit, I'll continue to do that. If I'm confirmed I to the Supreme Court, I will do that still. 

GRAHAM:  I would dare say there are personal thoughts on the Supreme Court, and nobody questions whether our liberal friends can set aside their beliefs. There’s No question -- no reason to question yours in my view. So the bottom line here is that there is a process. You fill in the blanks whether it's about guns and Heller, abortion rights. Let's go to Citizens United. To my good friend Senator Whitehouse. Me and you are going to come closer and closer about regulating money, ‘cause I don't know what's going on out there, but I can tell you there’s a lot of money being raised in this campaign. I’d like to know where the hell some of it is coming from, but that's not your problem. Citizens United says what? 

BARRETT: Citizens United extends the protection of the First Amendment to corporations who are engaged in political speech. 

GRAHAM: So if Congress wanted to revisit that and somebody challenged it under Citizens United that Congress went too far, what would you do? How would the process work? 

BARRETT: Well, it would be the same process that I've been describing. First, somebody would have to challenge the law in a case - somebody who wanted to spend the money in a political campaign. It would wind its way up, and judges would decide it after briefs and oral argument and consultation with colleagues and the process of opinion writing. 

GRAHAM: Same-sex marriage. What’s the case that established same-sex marriage as the law of the land. 

BARRETT: Obergefell.
GRAHAM:  Okay, if there is a state that tried to outlaw marriage, and there’s litigation, would it follow the same process? 

BARRETT: It would, and one thing I’ve neglected to say before that’s occurring to me now is that not only would someone have to challenge that statute, and somebody -- if they outlawed same-sex marriage, there would have to be a case challenging it. And for the Supreme Court to take it up, you’d have to have lower courts going along and saying we're going to flout Obergefell, and the most likely result would be that lower courts who are bound by Obergefell would shut such a lawsuit down, and it wouldn't make its way up to the Supreme Court, but If it did it would be the same process I’ve described. 
 

 

Amy Coney Barrett’s Judicial Neutrality Is a Political Fiction

This justice ain’t blind. Photo: Photo by Alex Edelman-Pool/Getty Images

Shortly after Ruth Bader Ginsburg exited this mortal plane (and before her body entered the earth), Mitch McConnell announced that his party would nominate and confirm her replacement to the Supreme Court.

The Senate majority leader justified his hypocritical stance by citing the GOP’s obligation to the “American people” who “reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.” Of course, the “American people” did not uniformly support Republicans in those elections, let alone for that reason. The people McConnell referenced are strong GOP partisans.

In the weeks since Ginsburg’s passing, Republicans have reiterated — through words and deeds — that they consider the appointment of Trump’s Supreme Court nominee, Amy Coney Barrett, to be a partisan goal of the highest importance. The GOP is so committed to her confirmation it has prioritized it over economic relief in the midst of a brutal recession. It’s so committed to it that Chuck Grassley and Lindsey Graham — 87 and 65 years old, respectively — have refused to take COVID-19 tests despite being exposed to infected individuals out of an apparent preference for risking the spread of a pandemic disease over risking positive tests that would force the GOP senators into quarantine, cost the GOP its majority on the Senate Judiciary Committee, and thus imperil Barrett’s nomination.

And yet: During the first day of her confirmation hearing, Barrett revealed that all of this was for naught. As the Supreme Court nominee explained to the Senate in her opening statement, her confirmation would have no predictable influence on public policy, nor would it advantage any particular ideological movement. If confirmed, all she would do is enforce existing law, nothing more, nothing less:

Courts have a vital responsibility to enforce the rule of law, which is critical to a free society. But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try … I believe Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written. And I believe I can serve my country by playing that role.

Of course, these words did not actually cause the committee’s conservatives to dissolve into spasms of despair. In the minds of Republicans, Barrett’s statement didn’t actually contradict the notion that her confirmation had profound ideological stakes. After all, honoring the objective meaning of the “Constitution and laws as they are written” will advance conservative goals — because the conservative movement is the one true upholder of our Republic’s founding principles.

If you read Barrett’s statement in this light — which is to say, if you presume that the entire Republican leadership and base are not fools who tragically mistook the significance of her nomination — then her claim to neutrality is actually more partisan than a frank admission of ideological commitment.

Barrett could acknowledge that a singular, objective interpretation of written language is beyond the capacity of the human mind and that — when in doubt — she errs on the side of a particular jurisprudential tradition that is closely affiliated with a particular ideological movement. Instead, she implicitly asserts something far more audacious: that her movement’s jurisprudence is tantamount to rule of law itself.

Barrett is hardly unique in selling herself as a disinterested umpire. Justices both left and right have offered the Senate similar avowals of judicial modesty. But as a self-described “originalist,” Trump’s nominee puts exceptional weight on her supposedly disinterested adherence to the “original public meaning” of the U.S. Constitution. Yet “originalism” is less a humble method for settling constitutional disputes than a parlor trick for recasting the conservative movement’s unpopular agenda as the minimum demanded by constitutionality.

Constitutional scholars have already made versions of this argument with a level of rigor I can’t approximate. But what I can do — in my throughly ideologically interested way — is give you three quick reasons why originalism is a sham:

(1) The meaning of constitutional language was ambiguous at the time of America’s founding (and even if it wasn’t, the Supreme Court is a collection of lawyers, not a panel of eminent 18th-century historians)

A former English major, Barrett knows that written language does not often have a single, unambiguous meaning. And the words of our founding document are no exception. The Constitution is replete with capacious abstractions like “the general welfare of the United States” and inherently subjective phrases like “necessary and proper” and “unreasonable.” In many instances, the ambiguity of these phrases was the apparent intention: The Founders effectively postponed the final settlement of their internal disputes by concealing their disagreements in imprecise diction. Thus, immediately after ratification, Hamilton informed Jefferson and Madison that their narrow interpretation of the “necessary and proper clause” depended on an ignorant reading of the word necessary, which “often means no more than needful, requisite, incidental, useful, or conducive to.”

The very concept of “original public meaning” — which posits that intelligent, involved members of a polity will have little trouble agreeing on the meaning of a given phrase at a specific point in time — is belied by the lived experience of our era, in which well-educated, highly engaged Democrats and Republicans get into heated semantic disputes on a near-daily basis. (Recently, such partisans have struggled to achieve consensus on the “original public meaning” of things Mitch McConnell said just four years ago.)

But even if we stipulate that there was a predominant, public interpretation of the Constitution’s thorniest phrases in 1788, why exactly would nine lawyers in robes have the authority to determine it? History is an academic discipline. The difficulty of deriving hard truths about a society from documentary evidence is so profound experts who devote decades of their lives to studying a single time and place can arrive at different answers to that period’s defining questions. When justices claim the authority to determine the unequivocal meaning of a phrase at a given point in history, they are not demonstrating judicial humility but supreme arrogance. The farcical nature of the originalist enterprise was made plain in the 2008 case District of Columbia v. Heller. Then, Justices Antonin Scalia and John Paul Stevens each produced their own historical monograph on the Second Amendment’s contemporary meaning, which arrived at antithetical conclusions that just so happened to line up perfectly with each jurist’s ideological tendency. The opinions nevertheless had one thing in common: Both were poorly regarded by actual historians.

(2) Originalism is not a neutral standard

Originalism isn’t bereft of intuitive appeal. Given the subjective nature of linguistic interpretation — and the natural inclination of human judges to resolve ambiguity in ideologically convenient ways — judicial review poses a clear threat to democracy unless it is bound by some external standard. And originalism purports to offer just that.

And yet beyond the inherent ambiguity of the Constitution’s original public meaning, and the unfitness of judges to ascertain it, there is another problem with the standard originalism offers: It is an arbitrary principle that plainly advantages conservatives over liberals.

There is no objective answer to the question of whether one should interpret legal texts on the basis of contemporary or historical meaning. And one cannot derive an answer to that fundamental question from the text of the Constitution itself. To the contrary, the fact that the founders littered their document with ambiguous phrases — without providing any glossary — suggests that they were none too concerned with ensuring that future generations would adhere to their precise, contemporary intentions. These people were not stupid. They understood that language evolves over time and that words can have multiple meanings. And yet they left their document ambiguous anyway. Further, some of the Founders forthrightly advocated for a kind of living constitutionalism, with Madison arguing by the 1790s that the meaning of the Constitution evolved with public opinion.

So originalism cannot justify itself as a neutral approach to jurisprudence on the basis of its own principles. And the doctrine has plainly pro-conservative implications. In contemporary constitutional disputes, defaulting to the intentions of 18th-century aristocrats will advantage reactionaries over progressives more often than not: A movement that prizes tradition and the economic prerogatives of private capital will find the Founders’ contemporary intentions more appealing than a movement that favors social progress and economic equality. This would be true even if originalist conservatives actually applied their methods with unerring consistency. Which they don’t:

(3) No one actually wants the U.S. government to adhere to the Constitution’s original meaning

Even Republicans don’t have the stomach to outsource judgment on all modern constitutional questions to the slaveholding elite of a preindustrial, post-colonial backwater. As Dean of Berkeley Law Erwin Chemerinsky has observed, a ruthless adherence to text and history would require forfeiting judicial protection of “liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, [and] the right to refuse medical care,” none of which are guaranteed by the Constitution.

Amy Coney Barrett herself has acknowledged the undesirability of applying originalism indiscriminately, noting in 2016, “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” and other institutions that “no serious person would propose to undo,” even if they lack constitutional grounding. Barrett’s proposed solution to this conundrum is for courts to simply avoid ruling on cases where originalism would dictate socially unthinkable overturnings of precedent; she wrote in 2017 that “discretionary jurisdiction generally permits [the Court] to choose which questions it wants to answer.”

But this expedient degrades originalism’s claim to neutrality. If an originalist Supreme Court can apply its doctrine opportunistically — taking only those cases in which its “neutral” juridical method will yield outcomes acceptable to a “serious” person (as they define that adjective) — then originalism isn’t much of a binding restriction on judicial discretion.

What’s more, Barrett’s concession tacitly betrays awareness of a critical fact that originalists love to elide when speaking for a lay audience: Amending the Constitution has become so phenomenally difficult it’s not at all clear that the American people could promptly replace an overturned Brown v. Board of Education with an amendment forbidding school segregation, despite overwhelming popular support for that Supreme Court decision. Originalists like to portray their judicial approach as highly democratic, since they purport to defer to the letter of a democratically enacted Constitution. But once one stipulates that the demos is manifestly no longer capable of passing constitutional amendments with regularity, it becomes clear that the originalist practice of striking down democratically elected laws in deference to the letter of a centuries-old document is profoundly anti-democratic.

Of course, in real life, “originalist” Supreme Court justices haven’t just applied their method opportunistically by selecting cases in which originalism will produce a favored outcome; they’ve also simply declined to abide by their method when they feel like it. On Monday, Barrett named Antonin Scalia as her guiding light on judicial philosophy. But as Georgia State University Law professor Eric J. Segall notes, Scalia voted “for broad rules limiting congressional power to enact campaign finance reform, to commandeer state legislatures and executives to help implement federal law, and to allow lawsuits against the states for money damages by citizens of other states” without “justifying these broad rules from a textual or historical perspective,” presumably because they have no textual or historical basis.

In sum: Amy Coney Barrett’s originalism does not work as a method of safeguarding democracy against an activist, ideologically motivated judiciary. It does, however, function quite well as a means of obscuring a far-right movement’s efforts to impose its unpopular agenda by judicial fiat.


Sen. Cruz: 'Who in Their Right Mind Would Want the USA Ruled by 5 Unelected Lawyers Wearing Black Robes?'

By Susan Jones | October 13, 2020 | 5:33am EDT

 

Sen. Ted Cruz (R-Texas) (Photo by MANDEL NGAN/AFP via Getty Images)
Sen. Ted Cruz (R-Texas) (Photo by MANDEL NGAN/AFP via Getty Images)

(CNSNews.com) - "Democrats and Republicans have fundamentally different visions of the court, of what the Supreme Court is supposed to do, what its function is," Sen. Ted Cruz (R-Texas) told the Senate Judiciary Committee on Monday, as the confirmation hearing for Judge Amy Coney Barrett got underway.

"Democratic senators view the court as their super-legislature, as a policy-making body, as a body that will decree outcomes to the American people," Cruz continued:

That vision of the court is something found nowhere in the Constitution, and it's a curious way to want to run a country even if on any particular policy issue you might happen to agree with wherever a majority of the court is on any given day.

Who in their right mind would want the United States of America ruled by five unelected lawyers wearing black robes?

It's hard to think of a less democratic notion than unelected philosopher Kings with- life tenure decreeing rules for 330 million Americans. That is not, in fact, the court's job. The court's job is to decide cases according to the law and to leave policymaking to the elected legislatures.

Committee Democrats on Monday warned one after another that President Trump nominated Barrett to the Supreme Court to invalidate the Affordable Care Act.

Democrat senators showed photos of constituents with terrible diseases who would be hurt if the Supreme Court declares the law unconstitutional, now that the individual mandate is not in force.

Cruz said the Senate is the right place to have policy arguments over Obamacare. But he also said Democrats should not expect a judicial nominee to promise to implement their policy vision of healthcare.

"That is not a judge's job. That is not the responsibility of a judge," Cruz said:

I don't know what will happen in this particular litigation on healthcare, but I do know that this body should be the one resolving the competing policy questions at issue.

Many of our colleagues talked about pre-existing conditions, and I think they have made a political decision they want this to be the central issue of the confirmation. But remember this -- every single member of the Senate agrees that pre-existing conditions can and should be protected. The end. There is complete unanimity on it.

Now it so happens that there are a number of us on the Republican side that also want to see premiums go down. Obamacare has caused premiums to skyrocket, the average family's premiums have risen over $5,000 a year. Millions of Americans can't afford healthcare because of the policy failures of Obamacare.

Those questions should be resolved in this body, in the elected legislature. It is not a justice's job to do that, it's not the court's job to do that -- it is the elected legislature's job to do that.

COVID AMERICA - Third Wave of the Pandemic Is Here

 

The Third Wave of the Pandemic Is Here

A medical worker pushes a stretcher through a hallway at Mount Sinai Hospital in Manhattan on the first day of fall. Photo: Spencer Platt/Getty Images

When Donald Trump checked into Walter Reed medical center more than a week ago, it appeared likely to have marked the beginning of the end stage of his presidency. But it was also a milestone for the pandemic, and not just because COVID-19 had infected its most prolific and prominent skeptic and dissembler. In recent weeks, a third wave of the coronavirus has come to the U.S. at almost precisely the time of year scientists warned us about in the spring. But the country has hardly noticed, so paralyzed and preoccupied by the spectacle of the presidential campaign it could barely acknowledge any new cases but Trump’s. There were nearly 50,000 new U.S. infections reported on the day the president was hospitalized, along with 835 new deaths. That’s two 747 crashes’ worth.

When the country passed 100,000 deaths, a spectacularly bleak edition of the New York Times marked the occasion with a six-column headline for a flood of obituaries that ran the full length of the front page (and onto several additional pages). When the toll passed 200,000, it did not even mark the tragic landmark on A1. They are running out of hospital beds in Wisconsin — which used to qualify as a battleground state, incidentally — and in North Dakota, which hasn’t imposed a mask mandate, they are down to 39 open ICU spots. But while the pandemic does indeed appear to be getting worse almost everywhere in the country, it also seems unlikely to return to the center stage of America’s attention until after Election Day — at which point perhaps 25,000 more Americans might have died.

But things won’t really change immediately after November 3, either. The apparent collapse of last-minute stimulus negotiations means that our sclerotic Congress won’t likely extrude any meaningful pandemic relief until January 20. There also won’t be a national testing program erected, or a federal contact-tracing system belatedly instituted, or, probably, a vaccine or novel therapeutics in wide distribution before the next presidential inauguration, either. At which point there might be 100,000 more American deaths than there are today, each a tragedy unfolding amid a considerably uglier humanitarian catastrophe — poverty and hunger, evictions and loss of health insurance, mass joblessness without commensurate federal support — than the pandemic has produced to this point. In other words, the third wave will likely be worse, nationally, than the first; much less buffered by political action and support, at least on the federal level; and, as long as the election eclipses the full attention of the news media, many times less salient. We’ve already tuned it out, and nothing is likely to help anytime soon.

Not very long ago, the pandemic response in Europe appeared to shame the United States. “Cafe society returns to Paris,” the Guardian declared as America’s Sun Belt second wave drove a summer spike from 20,000 new daily cases to 60,000. The day that article was published, the seven-day rolling average of U.S. deaths was 731; in France it was 32. Two months later, in mid-August, America’s seven-day average was at a then-distressing 1,008 cases, while the French figure had fallen to an enviably low 12. France is, yes, a much smaller country. Adjusted for population, the American outbreak, right then, was more than 50 times worse.

But as fortunes turned here — by mid-September, new American cases were down almost half from their peak — they shifted in the other direction over there. In France, where the seven-day rolling average of new cases had been as low as 530 in mid-July, it has grown to 12,000. In Spain, the average went from 250 to 11,000 new cases. In the U.K., where the average grew from 575 to 11,000 new cases, the growth overwhelmed the country’s rickety database, housed on an Excel spreadsheet that literally ran out of rows. And now, with America’s daily caseloads spiking, Europe’s recent experience looks not like an alternate path or even a cautionary tale but a grim forecast for what could transpire here. Already, according to Covid Exit Strategy, 26 American states are currently experiencing “uncontrolled spread.” Another 17 are “trending poorly.” That’s 43 of 50 states. Five of the remaining seven qualify as “caution warranted,” and only two states — Maine and Vermont — qualify as “trending better.” Two states out of 50. There are now about two-thirds as many people being newly admitted to hospitals each day as are being diagnosed — a very bad indication that things are about to get worse. However you look at it, a third wave of the pandemic is here.

But “wave” isn’t really the most precise term, and not just because the disease proceeds erratically across the country, with some communities in the West and Mountain West in the grip of a terrifying first encounter with COVID-19 while others are breathing easier and feeling as though they are many months past a peak. It’s because neither of the first two waves ever really crashed, only crested. This makes the third phase even more concerning — recent growth in caseloads, and deaths, comes on top of a distressingly high baseline of spreading sickness — roughly 40,000 new cases and 800 new deaths per day. Three weeks ago, Dr. Anthony Fauci told James Hamblin of The Atlantic that “we must, over the next few weeks, get that baseline of infections down to 10,000 per day, or even much less if we want to maintain control of this outbreak.” Three weeks later, it reached 50,000 — five times the upper end of Fauci’s “safe” range. Lamenting, this week, the maddening lack of a national testing strategy nine months after the coronavirus first arrived in America, immunologist Rick Bright of the NIH wrote, “the country is flying blind into what could be the darkest winter in modern history.”

When the coronavirus first arrived, in the spring, there was much hand-wringing and anxiety about a second wave to come in the fall or winter, as had happened with the 1918 flu — which killed five times more Americans in the winter than it had in the summer. And while experts warned in the spring not to count on a seasonal suppression of the disease in the summertime, their own data often suggested that the disease was in fact probably suppressed somewhat in those months, thanks in part to temperature and humidity effects that are now running in the opposite direction. That many of them are now warning we are underestimating coronavirus seasonality is not among the most conspicuous public-health reversals of the pandemic — reversals on mask wearing, asymptomatic spread, fomite and aerosol transmission, and the safety of the outdoors were all probably more consequential. But having it both ways on seasonality — emphasizing its trivial impact during the summer and its significant impact in the fall and winter in order to produce heightened vigilance in both instances — may well have muddied the public’s understanding of the disease. And possibly, in so doing, made the winter pandemic potentially worse.

“Absolutely, we did hear that a lot,” said Harvard epidemiologist Michael Mina, when I asked him about the summertime admonition to not count on a seasonal decline. “I think that people have become very confused about it all.”

Mina is an assistant professor at Harvard’s Center for Communicable Disease Dynamics and has made a significant name for himself during the pandemic as one of the most clear-sighted advocates of true mass testing, arguing back in the early spring that by far the easiest way to get disease spread under control was to test many millions of Americans very regularly. The fall and winter, he said, may already have gotten away from us. “We still have about 40,000 or 50,000 cases a day right now, and we haven’t really gone too far below that this summer,” he said. “But the fact that transmission can continue and persisted during the summer should not be misconstrued to mean that this is not a seasonal virus. It just means that maybe pretty soon we’re going to have 150,000 cases a day.” In this, Mina is echoing the warnings of other experts. The University of Minnesota’s Michael Osterholm told Meet the Press, “There’s a really hard road ahead of us,” and told STAT News, “I think November, December, January, February are going to be tough months in this country without a vaccine.” Harvard’s Caroline Buckee has compared the approach of winter to dark clouds on the horizon.

“A lot of that comes from just looking at how seasonal viruses like coronavirus generally transmit,” Mina said. “And frankly, they usually go to near zero during the summer months. And I would say that the fact that transmission has continued during those months, despite the fact that this is a seasonal virus; and the fact that normally, you’d expect the virus would go to near zero in the summer to really large numbers, even exponential growth in November, December — that doesn’t bode very well for us.”

By the time the virus was really circulating throughout the country, he said, we had already left the winter for the spring and summer, which means very few places, if any, experienced the pandemic at anything like its natural seasonal peak. In parts of the country where the virus has receded, he said, we’ve had a tendency to attribute that to our behavior — mask-wearing, social distancing, testing — “but I’m not convinced that it really is only from our behaviors. I think that we have probably benefited a tremendous amount just from the natural course of this virus.”

So what’s possible going forward? Mina said it was “very likely” we will exceed the spring peak, when, at one point, 2,500 people were dying from COVID-19 each day. But he also acknowledged there wasn’t yet clear evidence for that outcome and added that in a few places — the Northeast in particular — there remains a concerted focus on mask-wearing and social distancing that could mitigate such a surge, along with some amount of limited herd immunity or community protection from earlier exposure. “But I think many of the parts of the country that aren’t necessarily taking it quite so seriously run a real risk, a very high likelihood, of having substantially more cases.” How substantial? I asked. “Maybe ten times more than they’ve seen so far,” he said. “We’re not sure how bad it’s going to get this winter, but I think there’s a very good likelihood that it will be much worse.”

Warnings like these are, of course, speculative, given that the coronavirus is such a young disease it hasn’t even lived through a single fall yet — which means we can’t really know how it interacts with that weather when it does. (And given that the data on temperature effects of the disease gathered from around the world this year are somewhat muddied, with some studies showing little effect and others showing much more significant ones.) When I recently asked Micaela Martinez, an infectious-disease ecologist among the world’s leading experts on seasonality, whether we were seeing the beginning of such an effect, she cautioned that seasonality may only be playing a small role in the recent bad-news turn. True recurrent seasonality, which returns year after year, only comes when the disease is endemic, she said — that is, not in its initial spread through the population but in subsequent years or eras, once it has fully penetrated a population and can only infect new susceptibles (young kids, new arrivals, those whose immunity has waned). In the meantime, she explained, while there may well be some effect of seasonality on transmission and possibly disease severity, that effect would likely be dwarfed by others: how many susceptible people remained in a given community and our current interventions (masking, social distancing, and closures).

The matter of the remaining number of susceptibles is a tricky one. Early in the pandemic, the conventional rule of thumb was that at least 60 percent of a community would have to be exposed to the disease, and possibly 80 percent, before the community as a whole acquired a kind of collective immune protection against the disease — a phenomenon sometimes called “herd immunity” and sometimes “community protection.” But in the summer, as transmission rates seemed to decline in many places almost independent of policy interventions, a growing number of scientists and modelers began to wonder whether those thresholds were high or perhaps way too high. Many conjectured that caseloads and deaths were improving in part because of better testing and in part because of social behaviors like mask-wearing and social distancing, but also because enough people had gotten the disease, in certain places at least, that the virus was having a harder time finding susceptible victims, naturally slowing its spread. Stronger versions of this argument, often less credited by epidemiologists and virologists, suggested that the pandemic was entirely over in many of these places.

The herd-immunity argument has been renewed, in recent weeks, by the Great Barrington Declaration — a petition of epidemiologists and public-health officials, led by Harvard’s Martin Kuldoroff, Oxford’s Sunetra Gupta, and Stanford’s Jay Bhattacharya, expressing their concern that pandemic shutdowns were unwise and their belief that a less restrictive, more focused approach to managing the disease spread might be preferable. (A similar critique was made in August in The Wall Street Journal by Greg Ip, and even Brown’s Ashish Jha, among the more responsible guardians of coronavirus conventional wisdom, has lately worried that shutdowns were problematic.) And while the Great Barrington petition didn’t explicitly mention the possibility of herd immunity, its logic echoed the arguments made about it through the summer, and it has been picked up by many of the same people who’ve long suggested the disease is relatively far along its natural course of spread, which it might be left to complete on its own.

Unfortunately, as the summer has turned to fall, the herd-immunity hypothesis has gotten much less persuasive because in many of those places the disease trajectory has gotten much worse. That is true at the country level, though countries are a crude measure. Many of the European nations hit hardest in the spring have seen dramatic growth in cases in the late summer and fall. One pre-publication paper posted last month, surveying a number of non-European countries whose disease trajectories suggested they had reached herd immunity, calculated likely exposure rates in each ranging from 67 percent in Ethiopia to 80 percent in Madagascar. If the threshold of herd immunity was much lower than those crude 60-to-80 percent estimates offered at the outset of the pandemic, the disease wouldn’t have been able to spread that much before disappearing.

Particular cities offer better case studies, since they are more genuinely single communities, and there, too, the data is discouraging. In Spain, for instance, the places that had been hit hardest in the spring had relatively worse experiences with a second wave than those that had been spared. At the even more local level, some especially hard-hit parts of New York City are among the most concerning of the new fall clusters. And while there are still some signs of enduring community protection — Sweden, long vilified for an implicit herd-immunity approach, is now among the safest places in Europe, with total per capita deaths lower than the U.S. — a bet on community protection now looks much less safe than it might have a few months ago. Through the spring and summer, Belgium was, in terms of per capita deaths, the worst-hit country in Europe; it just registered about 8,000 new cases, the equivalent of 260,000 in the U.S.

Those looking for good news at the outset of the third wave do have something to point to: the lethality of the disease. Thanks to some combination of the age distribution of cases, improved treatments and better understanding of the disease, more vigilance in protecting the country’s most vulnerable, and more widespread mask-wearing, which can reduce the viral load of any exposure and thereby perhaps the risk of infection, the COVID-19 fatality rate appears much lower than it was in the spring. While the real fatality rate is a matter of some dispute and contestation, in August, Youyang Gu, then the pandemic’s most accurate modeler, calculated that it had fallen to 30 percent of its first-wave peak.

When I spoke to Gu in September, shortly before he discontinued his forecast, citing exhaustion and the improved quality of other projections, he was relatively downbeat looking forward into the fall. While the disease’s estimated infection fatality rate remains dramatically lower than it was in the spring, he said he believed that was largely due to the age distribution of cases and, less significantly, breakthroughs in treatment. It was likely just a matter of time, he said, before the rate creeps back up again.

Harvard’s Mina agrees, calling the possibility that the fall and winter could make the coronavirus not just more infectious but more lethal “likely” and citing a variety of possible explanations: that our epithelium is dryer in the winter; that we produce less mucus; that the air both indoors and outdoors is dryer, then, too; and that there may be a seasonal effect on the viral load as well, meaning the body would produce more virus in the winter than in the summer, making it both more easily transmitted and more dangerous. The science of these dynamics in other diseases is not all that well established, he cautioned, but he suggested that it may very well be the case that many diseases we think of as “seasonal” are in fact year-round diseases that only get severe enough that we notice them in wintertime.

For his part, Gu doesn’t believe the American fatality rate will return to its spring peak, when treatment was confused and the disease much less well understood. But he thinks it’s quite likely that, due to seasonal effects, the rate will grow higher this winter than it was this past summer. And it wouldn’t have to get much higher at all to be catastrophically destructive, given the volume of cases we have today (probably about 4 million, nationally and growing). While Gu describes a recent estimate from the University of Washington’s IHME, which used a large seasonal effect to project 400,000 deaths in the U.S. by the end of this year, as “just not possible,” he believes total Americans deaths could reach 300,000 by January, with a few additional months of winter still yet to come.

Along with NYU economist Paul Romer, with whom he has collaborated, Mina is perhaps the most prominent advocate of mass testing as a path to disease suppression. But, given where we are on testing and what the country cases are in the fall, even he is losing faith. “I wish I could say I felt like we were at a point with rapid testing that it would have much of an effect at all,” he said. “But I don’t think it will, unfortunately. I started talking about this back in June, and we haven’t really seen much movement.”

Even the seemingly good recent news about the FDA authorizing the use of rapid testing, he says, has limited significance. “I would like to see the government not just wait for [diagnostics companies like] Abbott or Roche or whoever to come out with a new rapid test but for the government actually to put $50 billion — which is frankly a drop in the bucket when it comes to the economic losses that we’ve seen — into the development and deployment of massive numbers of these rapid tests. But we’ve seen this government largely just stand and sit idly by and wait until a company like Abbott says, ‘Okay, we have, we can make 30 million a month per year.’” He laughed. “That’s 1 million a day for a country of 330 million. That’s not a lot. But the average person doesn’t get that.” Early in the summer, Romer argued that the country needed to be testing 30 million people a day to allow life to return to normal; even more conservative mass-testing estimates put the figure at 30 million a week — four times as many as Abbott can today produce.

“When the president gets up in front of his microphone and says, ‘We’re going to get you 150 million tests,’ most people think, ‘Oh, he’s really doing something,’” Mina said. “But that’s not tomorrow. That’s not every day. That’s 150 million tests between now and probably January or February. When they say things like, ‘This is going to help us open up the schools, and every teacher is going to get a test’ — it can’t just be one test. That’s not the plan. The plan has to be for every teacher to get a test twice a week. One test once does nothing,” he said.

“I just keep thinking about this epidemic — on our soil, in our country. And, like, what would the government do if we had 200,000 people die from bombs being dropped on us? You know, we would not be sitting idly by saying, ‘Oh, I wonder when Lockheed Martin is going to come out with a new bomb, and we’ll buy it whenever they come out with it, it might be next year.’ No, they would be doing everything in their power to push forth new technology to actually build it themselves.”

“We’re seven months into this,” Mina continued, “Why do we still not have a game plan? I mean, it’s just astounding. It’s just remarkable. We are barely in a better position from a testing perspective than we were in May. And we have no surveillance set up for most of the country. What are we doing?”

When I mentioned that I’d written a column in early April called “There Is No Plan for the End of the Coronavirus Crisis” and another, a month later, called “There Is Still No Plan,” Mina responded, “You should just keep writing that. Just take your exact article from April and literally just publish it tomorrow, with the same headline, and not change any words.” He paused. “I just can’t understand what the hell we’re doing.”

One answer: We’re simply waiting until January, and for tens of thousands more Americans to die, before even beginning the project of national pandemic response we should have launched fully a year before.