Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress.

I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.

Naturally, right-leaning sites are reporting and commenting on only the first paragraph, to paint the President as an out-of-touch hypocrite, unable to draw the distinction between good “activism” (Boumediene on CSRTs) and bad “activism” (ObamaCare). This is a line of attack the President can avoid — even though he shows no signs of taking any steps to avoid it — by making this election about first the members of the Court, and not its powers.

A decision invalidating the individual mandate would be unprecedented, but not for the reasons President Obama identifies. It would be unprecented as the very first time, ever, that the Supreme Court invalidated a congressional attempt to regulate an economic market under the Commerce Clause. Ever. It would also represent the first time since the New Deal that the Court stood directly toe-to-toe with a President over the centerpiece of his domestic agenda. That didn’t end so well for the Court last time — President Franklin Roosevelt waged an unrelenting war on the Court’s legitimacy, leading them to ultimately repudiate a vision of the Due Process Clause that barred even workplace safety rules — and it’s time for President Obama to take a page from that book.

With decision after decision in the last few years, the Court has managed to tip so far to the right as to steadily erode its legitimacy as an apolitical actor. D.C. v. Heller – which “found” for the first time a constitutional right to bear arms — was probably legally correct, but still a bolt from the blue. Citizens United wrote Mitt Romney’s laugh line (“Corporations are people, my friend!”) into the U.S. Reporter, surprised legal commentators, garnered stern presidential rebuke, sparked Occupy Wall Street, and launched a prolonged campaign of public ridicule. And just yesterday, the Court held that police may constitutionally conduct strip searches for any offense. I don’t actually know the law on that last bit, but (momentary conservative doublethink notwithstanding), Fourth Amendment freedom from absurd search protocols seems to have, magically, become a valence issue, adored by both right and left. What I’m getting at is, if the Court were trying to alienate voters, they could hardly do a better job of it.

President Obama’s challenge is to channel that outrage, through an issue where public polling is considerably murkier, into generalized bipartisan concern for the Supreme Court’s doctrinal dalliances. He needs to paint any adverse ObamaCare decision — or any thin margin on a decision upholding the Act — as a sign that, regardless of what anyone thinks about the constitutionality of the mandate itself, the Court has become unhinged from constitutional reality, and simply started handing down decisions based on the members’ political preferences. ThinkProgress has the right idea; and we might also note Justice Thomas’ wife’s heavy involvement with the Tea Party. This is a message that can work, if carefully crafted and skillfully deployed. But over the course of the past three years, that’s a combination this White House hasn’t managed to pull off, ever.

In fact, no matter how close the case ultimately comes out, the matter is probably already, for all intents and purposes, decided. It’s the rare oral argument that changes any judge’s pre-existing view of the merits, a point that’s probably particularly relevant in controversial, closely-watched cases. For judicial opponents of Congressional power, this is a day decades in the making. For proponents of the status quo – and make no mistake, the status quo would uphold the law — this is a chance to put to bed the conspiracy theories and legal fantasies that’ve animated the Tea Party for two years. The destination is already chosen; the rest is just the journey. But the journey does matter.

Sadly, the Court chose to shut out television cameras, squandering a valuable chance to educate the public about the nature of constitutional law, and constitutional decisionmaking. This means we’ll have to wait for transcripts, or live reporting from Court correspondents. When we start to hear reports, keep the following rules about appellate advocacy in mind –

• Infer from questions only carefully: if a Justice asks a question, it’s not always because he or she personally believe the question’s implications. Justices tend to use questions not to tip their hand as to their own beliefs, but to argue with their colleagues by proxy. So if we hear a “liberal” justice ask a question that implies that the individual mandate oversteps precedent, don’t assume their vote is lost.
• Watch who the lawyers are “targeting”: it’s widely believed in liberal circles that Kennedy, Roberts, and Scalia are all “gettable” votes to uphold the mandate. Winning Scalia would be an especially valuable political coup, since he’s widely viewed as more crazily conservative than he actually is (contrast that with Thomas, who actually is as crazy as people think). Arguments from ObamaCare’s proponents turning on Gonzales v. Raich, for example, can properly be viewed as attempts to convince Scalia, who upheld federal power in that case, that the mandate is necessary as part of a complex, otherwise constitutional regulatory regime.
• Don’t expect the Tenth Amendment to come up: as we’ve detailed extensively, the Tenth Amendment argument is just a non-starter. Every lower appellate court has agreed, and the only Tenth Amendment case in recent history, U.S. v. Printz, was written by Scalia, but concerns federal “commandeering” of state officers. That plainly does not apply.
• Look for clues from narrative: the most important part of appellate advocacy is issue framing.  The Court already framed the questions (pdf), and therefore, the context of the debate. But how the advocates from their position is important, especially when we get to the individual mandate question. Look for lawyers to drop initial phrases like, “this is a case about…,” and ask yourself why they’ve chosen to frame an issue in one particular way.

Here, lawyers are in the strange position of framing a narrative maximum effect in sophisticated legal setting, and simultaneously for wider political consumption.  Politically, conservatives will want to take an extreme position – “this is a case about the government straining the Commerce Clause to its breaking point” – but counsel will have to balance the hyperbole the public expects against a legally wiser, more tentative position.  Remember that this is a Court that has never limited the Commerce Clause’s reach as a tool of pure economic regulation. And, more importantly, running to histrionics will immediately put the Court on the defensive. Even if they’ve already made up their minds, if he starts out by staking a far-right position, counsel could be in for a rough first ten minutes of arguments as the Court forces him back into line.

And lastly, remember, the course of argument may not be the best predictor for the Court’s eventual result. I’ve had judges feed me my best theory during argument, and otherwise appear to be on my side, only to lose the unanimously nine months later; and I’ve seen judges beat up on our opponent in argument, hard, only to beat up on us in the final opinion. Hard. Like lawyers, judges like to hear themselves talk, and more so than any other day, the nine justices are conscious of their audience.

Follow a live blog of the event at ABC News, or National Review.

Justin Levine, “Second Nature,” from the OST to Bloody Bloody Andrew Jackson.

Politicians and scholars alike debate the efficacy of high-dollar ad buys, and the importance of tone (positive or negative?). In fact, it’s a subject we’ve discussed here before, because to date the academy’s reached no resolution on the question of whether negative campaigning is a net benefit to any given candidate. The reason why is probably painfully obvious: voters respond to the gestalt campaign, rather than its individual features, and all of the factors that make negative campaigning “succeed” or “fail” in a given race can’t be summarized or reduced to the graphs and tables political scientists are so fond of. I’m sure I’ve said this before, too, but quantitative political science just doesn’t work. At least, not in all cases.

We can, however, draw isolated conclusions from individual races. And those are:

• Positive campaigning works for Newt Gingrich: last night, the troubled speaker went to his greatest debate in recent memory (say some), or a lackluster performance falling well short of what he “needed” to redeem himself (say others). Regardless, the night went better for him than the debate where, after his victory in South Carolina, substantially powered by a commitment to avoid negative campaigning, he tried to stand toe-to-toe with Mitt Romney‘s withering personal attacks.
• Negative campaigning works against Newt Gingrich: nevertheless (like the women of Rohan), those who refuse to wield the sword may still die upon it. Mitt Romney’s “unprecedented” and vicious attack ads against Gingrich, pre-Florida, worked, and brought to a swift close the speaker’s late surge. Whether Romney paid a price for that tactic remains to be seen.

I hesitate to draw a general conclusion from this evidence, though, because Newt Gingrich is in many ways an exceptional politician, burdened by a uniquely sordid past, but benefited by an equally unique record of political success. If some conclusion can be drawn, it’s that those who fear to live in glass houses should not throw stones. The candidate’s pre-ad blitz persona matters: weaknesses can be expanded by negative campaigning, but perhaps they can’t be created.

Similarly, Mitt Romney seems to prove, on a daily basis, that aggressive campaigning simply cannot manufacture largescale popular appeal. After running far and away the most expensive of the Republican campaigns, Romney’s managed to buy an election he can barely hold onto, against a stream of exceedingly weak challengers, but not one that he can win. Mitt’s the political equivalent of a 7-11: he never closes.

We should absolutely worry about the distorting effect of money on politics. In fact, a speaker’s ability to modulate the volume of his voice so as drown out other participants in the “marketplace of ideas” is the greatest threat to the philosophical underpinnings of the First Amendment, and one we truly can’t afford to ignore. The “search for truth” rationale only works if powerful participants can’t bury that truth under a mountain of money [see two similar posts on the subject]. But Romney might prove that individual candidates (and perhaps individual issues) have a hard cap, after which money spent fails to alter public perception, whether due to countervailing pressures (a skeptical news media), or because candidate image ossifies after a certain amount of time spent in public life. It’s hard to say from just one sample. But in the era of the Super-PAC, we can at least be confident that more data points will emerge in time.

*     *     *     *     *

Recent events in this year’s rapidly closing primary season showed erstwhile Republican frontrunner Newt Gingrich at his level best, creating new campaign themes design to sever, with a surgeon’s precision, a candidate from his independent, middle-class, “real-America” support. The problem: this time, Gingrich’s focus was a fellow Republican, Mitt Romney, and the type of bare-knuckle capitalism he made famous, leading to charges that the fiery speaker was “attacking capitalism” itself. This is an overreaction, but a justified one.

The Gingrich argument — that Romney’s past with the corporate raider firm Bain Capital shows a candidate who’s not just comically out of touch, but in fact made his fortune shuttering the kinds of firms that employ average citizens — is not about capitalism. It’s about Romney’s electability, and the many ways his candidacy fails to resonate with those elements of the 99% that comprise the Republicans’ post-Reagan power base. But it raises deeper questions, and Republicans are right to worry, because the Bain argument appears to show a chink in the larger party’s rhetorical front.

Since the beginning of Obama’s term, Republicans have endeavored to present a unified line of battle when defending corporate interests, large and small alike: that’s why, in the hands of John Boehner and congressional Republicans, the regulation of highly volatile, irresponsibly-traded derivatives becomes an existential threat to the free market, and a danger to small business job creation, when in fact it’s no such thing. The result is a political landscape where one is either entirely for the unregulated free market — with all of its excesses — or by opposing one portion of it, entirely against it.

This line makes sense as long as Republicans stay on one side, and Democrats the other. But Gingrich’s attempt to invoke Bain to damage Romney compromises the Manichean simplicity of their argument. If parts of capitalism are flawed, or work against middle-class interests, maybe other parts need fixing too. And if so, does it still make sense to say that all regulations kill jobs? This is the proverbial flank which, when weakened, compromises the integrity of the entire army. Think of von Kluck’s right flank, turned at the first battle of the Marne, to the ruin of Germany’s greater dreams.*

Of course, the Speaker ultimately reversed himself, and gloriously returned himself to the Republican orthodoxy. But the damage is done, and vigilant Democrats should observe the weakness on Romney’s right. If some Republican voters could be turned by Gingrich in such short order, perhaps they could be turned again in the fall.

* – With apologies for the tortured World War I metaphor. I just finished reading Guns of August, and that book is just great.

For reasons I can’t fathom, demands for loan forgiveness have always been a staple of youth movements — but it’s never gonna happen. Forgiveness wouldn’t erase debt, it would just shift it, saddling corporations with the more than $1 trillion dollars currently borne by students nationally. Perhaps corporations remain better able to carry that burden than recent graduates on an individual basis, but on a systemic level, the financial sector simply can’t write down another trillion dollars without prompting another industry-wide collapse. Nor can universities simply stop charging for college degrees, without eradicating jobs for academic professionals, and endangering the research universities that make American higher education (and science) so unique. Simply put, there’s really no such thing as a free lunch here.

And, demands for loan forgiveness fairly clearly bump up against the honorable opposition’s favorite mantra: “personal responsibility.” Some issues truly are out of the hands of even responsible citizens: employment (in many cases) is one of them. Loan debt is not. In today’s economy, a college degree is a bare necessity for a successful life — but a degree from the institution of your choice is a luxury. You don’t have to go to Harvard to get a good education. Nor do you have to go to one of the quaint little liberal arts schools that define the college experience in the popular mindset, but stand to set you (or your family) back $50,000 a year, and offer only a mediocre academic pedigree in return. I sympathize with the kid from a poor family who saved day-in-day-out, went to Georgia Tech, did well, and still can’t get a job — or was laid off when his sector of the economy imploded. I don’t sympathize with (say) SMU alums who simply didn’t ever think about how they’d pay back their loans. That’s on you.

Part of building a good movement is crafting an agenda that’s forward-thinking enough to inspire, but realistic enough to potentially see some real-world success. OWS has hit the first mark — wouldn’t it be nice if everyone could go to Harvard, and not pay a dime?? — but needs to dial it back to hit the second. Until that happens, I’ll sympathize generally with the protestors, begrudge them the minor inconvenience they inflict on my Financial District, and thank God for the privilege of living in a country where people like them can sit around in a park just to “make a statement.” I’ll even take seriously their general discontent (ahem, NSFW) with the current state of things.

But I won’t respect them as a movement until the organizers kick this, and the Marxist element, out of their platform.