First published in Daily Maverick 168

I drove all day, west and south from New York, across the Susquehanna river and into the Allegheny mountains, hallucinogenic at their fall peak of foliage. On the radio, a sustained murmur of anxiety: things are coming to a head.

Thursday was to have seen the second presidential debate. Instead, in a few hours the candidates will host duelling town halls, on rival television networks, in what is without question the most profound media failure of the campaign. NBC news announced Wednesday that they would counter-programme Donald Trump against Joe Biden’s planned town hall on ABC, rewarding the President for refusing to participate in the second debate, forcing the public to choose which candidate to watch, and enabling Trump’s rating’s-contest rhetoric. NBC, of course, is the network that rebuilt the Trump fortune with The Apprentice and this was a reminder that, as strenuously as many American journalists have laboured to correct the mistakes of 2016, some very powerful broadcast executives are blithely re-enacting them.

The virus, of course, is not indifferent to media. It has flourished in the cloud of misinformation emanating from the White House, Fox News, and the hyper-partisan infosphere online. As I drove deeper into rural Pennsylvania, the Trump-Pence banners thickening, the US Covid count ticked over eight million cases, with 17 states experiencing their highest infection levels since the start of the pandemic, according to the New York Times’ database.

Kamala Harris cancelled travel plans after two staffers on her plane tested positive, and in New York, where we have jealously guarded our low positivity rate, and celebrated the successful reopening of schools, we may be on the brink of another shutdown. The city’s uptick is driven largely by infections in the Hasidic neighbourhoods of Brooklyn and Queens, where support for Trump is overwhelming, and with it the false belief that the awful toll of the spring peak has conferred herd immunity on the Haredim. Targeted closures ordered by governor Andrew Cuomo in the areas with the sharpest increases are now under way, accompanied by divisions in the community over whether to comply, and a violent backlash from some young right-wing men.

In this febrile, accelerated atmosphere, the rushed senate confirmation hearings for Trump’s Supreme Court nominee Amy Coney Barrett turn the ratchet one notch more. Coney Barrett is a truly extreme figure, something she sought to mask behind banal evasions on every question of consequence about her judicial and political views. A fierce opponent of abortion rights, a critic of an earlier Supreme Court precedent upholding the Affordable Care Act, and a member of a deeply conservative Catholic sect, she would not be drawn on reproductive rights, gay marriage, corporate power or climate change.

If nothing else, however, the hearings have exposed just how radical her judicial philosophy is, and how wildly out of step with public opinion.

“I think the American people need to understand what [your] ‘originalist” philosophy might mean for their everyday lives”, Delware senator Chris Coons told her, “because I think it means that our entire modern understanding of certain constitutional commitments around liberty, privacy and equality under the law could be rolled back to 19th- or even 18th-century understandings in a way unrecognisable to most Americans.”

He proceeded to provide a crisp illustration of just how, asking Coney Barrett whether the landmark 1965 case, Griswold, had been correctly decided. It was a canny place for him to start. In Griswold, the court overturned a Connecticut law criminalising the use of contraception. The court held that married couples had a right to privacy that protected them against the intrusion of the state into intimate relations. The US Bill of Rights makes no explicit mention of privacy, but the court ruled, 7-2, that such a right exists, and can be inferred from among its amendments.

Antonin Scalia, for whom Coney Barrett clerked, and whom she cites as her mentor, insisted no fundamental right to privacy exists in the constitution, but he was an outlier, even on the right, and many of her immediate conservative predecessors have been happy to affirm the decision’s correctness.

She would not, saying only that it was an academic question, and highly unlikely to come up.

It was a telling evasion, and one that a broad swath of the public could understand.

Moreover, it is far from academic.

As Coons pointed out, it is in the jurisprudence in Griswold that the privacy foundations of Roe v Wade are found, and later, Obergefell v Hodges, which established same-sex marriage as a right.

Nothing is likely to stop Coney Barrett from being confirmed; not the fact that voting is already under way, not an election that polls strongly suggest Biden will win, not even a change in the composition of the Senate, which can confirm her during its “lame duck” transitional session, potentially securing a right-wing majority on the court for a generation.

The senate judiciary committee sticks more closely to its rules than Trump did in the first debate, but Coney Barrett’s appearance, as the lines for early voting grow across the country, is an interruption more consequential and ultimately just as crude as his were, the insistence of a defiant white minority that they own the future, and they aim to keep it that way.

Here, in the red, red hills, that is what the lawn signs say, and the flags, and the bumper stickers: screw the facts, screw your “democratic norms”, we still make the rules in this country.

Whether they are right or not is what this election is truly about. In a little more than two agonising weeks, we will know. DM/DM168