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.

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.

Unemployed Americans are a natural Democratic constituency. They’ve been wronged by corporate interests, and feel the system — the unrestrained free market, so belovéd lately by the right — has left them behind. And as they partially dependent on public support, unemployed Americans are less likely to be taken in by the right’s anti-”big government” shills (the tea party). The unemployed understand the value of the social safety net, and should (absent some bizarre cognitive dissonance) wish to see it continue. And when you’re out of work, it’s the first thing on your mind: a worker’s identity, as one of the unemployed, cuts across other divisive sociopolitical cleavages. It doesn’t matter if you’re gay or a fundamentalist: if you’re looking for a job, providing for your family is priority #1.

More, Republicans seem to be doing everything they possibly can to alienate this bloc of voters. Herman Cain essentially told everyone without a job that it’s their fault they’re out of work — when in this economy, we know that’s not the case. How easy is it to be excellent at your job, but become part of a random downsizing initiative that takes no account of your individual value? (Granted that Cain explained away his callousness at the last debate — but why should that matter? The sound bite’s on record. Run with it.) And the Republican wing of the Senate, helped along by two Democratic defectors, refused to even open debate on the only job-creating bill that any party has even proposed in months. While Republicans debate whether Cain’s “9-9-9″ plan is a secret tool of Satan, and muse poetically about how ending gay marriage and other “threats to the family” would magically restore the economy to its previous grandeur, the candidates’ Senate colleagues aggressively block any attempt to provide necessary relief to this neglected set of voters. Why should we let them get away with it?

A bizarre quirk of campaigning for the unemployed is that your goal is, naturally, to eradicate your supporters as a distinct bloc. So be it. When your voters return to the rolls of the middle class, they’ll remember whose policies helped them to get there.

The pledge also unduly burdens a president’s ability to appoint the most qualified individuals to a broad array of key positions in the federal government. I would expect every one of my appointees to carry out my policies on abortion and every other issue, irrespective of their personal views.

Emphasis mine. “Undue burden” is the rubric used by the Supreme Court to evaluate the constitutionality of restrictions on abortion ever since Casey. And, that decision came out well after Mitt graduated law school in 1975. We talk about dog whistle racism, but what about dog whistle intellectualism? Mitt’s a smart guy, we know; maybe this is his nod to supporters that, even though he can’t act smart, he actually knows what he’s talking about. Whether he’d act that way as President, well…

For once, I don’t think this is entirely fair. Sure, Palin’s third-grade understanding of American history is hilarious, especially in light of how proudly her followers proclaim themselves to be the direct and exclusive heirs to the colonial tradition. And the halting, confused explanation is especially stunning in light of the simple question that preceded it:

What have you seen so far today, and what are you going to take away from your visit?

I would pay a lot of money to see this woman in a presidential debate.

But we all co-opt, mythologize, and exploit history. It’s practically a Western tradition, at least as old as Rome, where personal histories were wildly distorted to serve as useful morality plays. American democracy is founded on a similar premise: that Rome republicanism — which actually masked a brutal, unequal, and authoritarian society — could form the model for a government where all men are actually equal before the law. It’s a conceit that most of the Founders candidly acknowledged to each other as false. Jefferson especially was well-versed in the classics, and knew what he was doing, but the image was (and remains) valuable.

This is to say, if we’re to upbraid Sarah for this latest catastrophe, we should focus on the ineptitude of her historical appropriation, not the fact of the appropriation. Query, for example, whether Paul Revere riding a horse to protect the militia’s stockpiled arms from the invading British is in any way analogous to Sarah Palin riding a hideously tacky bus to protect your right to unnecessarily shoot animals with AK-47s.

Now, the same charge is back, but as an excuse for the lackluster Republican field, and an explanation for Obama’s likely re-election. Per The Wall Street Journal, if Obama wins, it’s because of the myth — and celebrity — but not the man.

I don’t dispute that President Obama’s personal life presents a compelling, relatable, important, and quintessentially American story. But what’s most important is that Obama uses his past to inform his politics. Other candidates, like Tim Pawlenty, actually have similar rags-to-riches upbringings, but make no attempt to relate their rags-to-riches tale to their policies. Instead, Pawlenty’s past seems to contradict his present and future, and denies the very “social exceptionalism” that the author admits her party needs. Here is a party that “believes in you,” as we hear, but leverages the same as an excuse to let you go your own way, pull out the social safety net, and rely on lines discredited by Bruce Hornsby songs should you fail (“Just for fun he says… get a job!”).

Oh, but don’t you believe them. What works for President Obama is that his story matches with a compelling vision for you. Here’s a man who emerged from a tough beginning against all odds, and doesn’t believe you need to face the same odds. That’s a powerful message, because it results from the knowledge that living the American dream is very, very hard, unless we look out for each other. Not to over-indulge in music this post, but we must bear our neighbors’ burdens within reason, and our labors will be borne when all is done. Don’t carry it all!

Obama’s struggles taught him that compassion, and it comes through. Pawlenty’s life taught him… what, exactly? When a Republican can answer that question, he’ll do well. Until then, we can suffer through the Wall Street Journal’s overwrought explanations of the party’s failures, but this will be the extent of the Republican Party’s relevance. This I swear to all.

*     *     *

Oh, and you know what? The author’s treatment of McCain’s decision to ignore the President’s middle name goes completely amiss. It wasn’t cowardice, and it wasn’t political correctness. It was class, a word we may have forgotten. But what would you expect from an author who, in the very next breath, attributes Trump’s meteoric rise, and meteoric fall, to his insightfulness?

Why don’t we hear this argument a lot? Well, think about it: if you’re perceived as “successful” in job creation, you’ll stay way the Hell away from anything that threatens to question your “achievement.” And if you’re perceived as “unsuccessful,” it sounds like an overthought and convenient excuse. If campaigns require selective indulgence in myths, this is certainly one to cultivate.