Indiana U.S. Senate candidate Richard Mourdock, the Tea Party candidate who proclaimed that “bipartisanship ought to consist of Democrats coming to the Republican point of view” shortly after defeating longtime incumbent Sen. Richard Lugar (R-IN), does not think he should be elected to the U.S. Senate. Indeed, he believes that it should be unconstitutional for anyone to run for the Senate. At a campaign event last February, the Tea Party candidate came out against the Seventeenth Amendment, which ensures that senators will be chosen by elections and not by state legislatures:

You know the issue of the 17th amendment is so troubling to me, our founding fathers, again those geniuses, made the point that the House of Representatives was there to represent the people. The Senate was there to represent the states. In other words the government of the states. . . . You know I think most senators if they had to come back every two years and by the way that would solve another problem. It would solve the idea that Senators move out of their state and never return. But it would cause those senators to have much greater contact with their states. You know just think of this. In today’s you see millions and millions of dollars spent on Senate campaigns. Two years ago, in 2010, Sharon Angle out in Nevada spent 31 million dollars, just herself. How much money would be spent in federal senate races if the state legislators were electing those people. You just took the money out of politics. Is that a bad thing?

Watch it:

Mourdock is certainly right that eliminating U.S. Senate elections would end the practice of corporations and wealthy individuals throwing millions of dollars to change the result of those elections. Indeed, under Mourdock’s logic there’s no reason to stop there. If we simply named someone the hereditary monarch of the United States — King Mitt I — then no one would ever spend money to influence an American election again!

Mourdock is dead wrong, however, to suggest that ending Senate elections would eliminate corruption. Rather, one of the primary forces driving the Seventeenth Amendment’s ratification was the fact that the old system led to a kind of Citizens United on steroids:

[T]he system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.

Sadly, Mourdock is not the first major Republican to say that the American people should not be allowed to elect their own senators. Texas Gov. Rick Perry believes this, as does Sen. Mike Lee (R-UT) and Justice Antonin Scalia.

Justice Antonin Scalia is no stranger to partisanship — he spent much of last week’s hearing on the Affordable Care Act touting Republican talking points about “broccoli” and “cornhusker kickbacks” rather than examining his very own opinions that establish that health reform is constitutional. Yet, when given an opportunity to echo Republican Fifth Circuit Judge Jerry Smith’s partisan effort to undermine President Obama earlier this week, even Scalia seemed to think that was a bridge too far:

He declined to answer a question about President Barack Obama’s Monday remarks that it would be an “unprecedented, extraordinary step” for justices to overturn the challenged federal health care law.

“We don’t respond to criticism,” Scalia said. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.” When the questioner pressed Scalia on who would provide checks and balances to the president, he said that, “We have three branches. They check and balance each other.”

Obviously, Scalia’s comparison between judicial silence and Muhammad Ali’s tactic of tricking his opponent into tiring himself out is not intended to paint the Court’s critics in a favorable light. Nevertheless, it is telling that even the Court’s most strident conservative will not mimic Smith’s transparently partisan tactics.

We will not know until June whether the Supreme Court will strike down the Affordable Care Act or decide instead to follow the Constitution. One thing that was completely clear from this week’s oral argument, however, is that one member of the Supreme Court is far more concerned with reciting political talking points than he is with actually upholding the law. Watch the following video compilation to see the many times Justice Scalia echoed anti-Obamacare rhetorical barbs by Mitt Romney, Newt Gingrich, and other leading Republicans while he was supposedly being a neutral judge weighing the merits of the Affordable Care Act:

During a speech at Wesleyan University last night, Supreme Court Justice Antonin Scalia offered a strange revision of the time he joined with four of his conservative colleagues to make George W. Bush president:

At the end of the speech, Scalia took questions from the audience. One person asked about the Bush-Gore case, where the Supreme Court had to determine the winner of the election.

“Get over it,” Scalia said of the controversy surrounding it, to laughter from the audience.“

Scalia reminded the audience it was Gore who took the election to court, and the election was going to be decided in a court anyway—either the Florida Supreme Court or the U.S. Supreme Court.

It was a long time ago, people forget…It was a 7-2 decision. It wasn’t even close,” he said.

Bush v. Gore was not a 7-2 decision — and indeed, Scalia could tell this is true by counting all four of the dissenting opinions in that case. Although it is true that the four dissenters divided on how the Florida recount should proceed — two believed there should be a statewide recount of all Florida voters while two others believed a narrower recount would be acceptable — not one of the Court’s four moderates agreed with Scalia that the winner of the 2000 presidential election should effectively be chosen by five most conservative members of the Supreme Court of the United States.

Last Sunday, conservative Justice Antonin Scalia addressed the Living the Catholic Faith Conference conference in Denver, Colorado. During his speech, however, the justice appeared to suggest that Jews, Muslims and other non-Christians are somehow less rational than people who share his faith:

In Washington, Scalia said, the pundits and media couldn’t believe in a miracle performed under their noses.

“My point is not that reason and intellect need to be laid aside,” Scalia said. “A faith without a rational basis should be laid aside as false. … What is irrational is to reject a priori the possibility of miracles in general and the resurrection of Jesus Christ in particular.”

“A priori” is a philosophical term which is usually used to refer to a claim that one has knowledge independent of experience, so it is unclear how anyone could reject the central Christian belief that Jesus Christ was resurrected from the dead under Scalia’s standard given that no living person was around to actually experience it. More importantly, though, the clear implication of Scalia’s statement appears to be than all non-Christians — or approximately two-thirds of the world’s population — are “irrational.”

If Scalia indeed holds this view, than it raises serious questions about whether he can set aside this belief when called upon to interpret a Constitution that requires all religious beliefs to be treated with equal dignity. Moreover, it could have profound implications for the burgeoning debate over whether the Obama Administration’s contraceptive access rules are upheld by the Supreme Court.

In 1990, Scalia wrote the seminal Supreme Court case interpreting the Constitution’s guarantee that all Americans can freely exercise their faith, Employment Div. v. Smith. In Smith, Scalia explained that a law does not suddenly become unconstitutional because someone raises a religious objection to it. Scalia explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” This is why a law ensuring access to contraception is constitutional even if several Catholic bishops object to it.

Smith, however, did not involve Christians — it involved members of a Native American faith that wanted to use the drug peyote in a sacred ritual even though that drug was banned. Hopefully, Scalia recognizes that the rule he announced in Smith must apply equally to faiths he views as “rational” and those he also may view as “irrational.”

During a recent Senate Judiciary Committee hearing, conservative Justice Antonin Scalia said that U.S. Constitution is vastly inferior to that of one of our long defunct enemies:

The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it literally. It was much better. We guarantee freedom of speech and of the press, big deal! The guaranteed freedom of speech, of the press of street demonstrations and anyone who is caught trying to suppress criticism of the government will be called to account.

Watch it:

Scalia’s casual disregard for our Constitution proves that he is manifestly unfit to interpret it. If Scalia would rather live under the Soviet constitution, than he should move to Russia and see how he likes trying to get a job as a judge there. Clearly, ThinkProgress has no choice but to call for this communist infiltrator to immediately resign from the federal bench.

Except that such a call would be completely dishonest, which will be clear to anyone who takes half a minute to watch the entire video embedded in this post.

Sadly, a small army of right-wing legal groups and commentators are perfectly willing to levy an equally unfounded attack against left-of-center Justice Ruth Bader Ginsburg. Last week, Justice Ginsburg told an Egyptian audience that she would not recommend using the United States Constitution as a model for the new Egyptian Constitution. Ginsburg suggested that Egypt should learn from the full experience of the world in drafting constitutions, and because we have the world’s oldest enduring Constitution, its drafters did not benefit from all that humanity has learned about constitution drafting in the last 200 years.

It was no doubt predictable that these comments would inspire right-wing editorials headlined “Justice Ginsburg Should Resign,” but those editorials are just as ill-considered as a suggestion that Scalia must resign because of his comments about the Soviet Union. If Ginsburg’s opponents had actually bothered to watch her entire statement to the Egyptians, they would have heard her stirring praise for our First Amendment, her references to the “genius” of our Constitution, and her statement about how powerful it is that our Constitution places power in “We the People.”

But, of course, Ginsburg’s critics aren’t interested in actually doing their homework, they just want an excuse to go on the attack.

In an excellent piece highlighting the impact a second Obama term could have on the federal judiciary, the AP’s Mark Sherman provides an important reminder of what is at stake in this election:

The next president, whether it’s Obama or a Republican, also has a reasonable shot at transforming the majority on the Supreme Court, because three justices representing the closely divided court’s liberal and conservative wings, as well as its center, will turn 80 before the next presidential term ends.

The three justices are Ruth Bader Ginsburg, the leader of the court’s liberal wing, conservative Antonin Scalia, and Anthony Kennedy, who leans conservative but on some issues provides a decisive vote for the liberals.

Kennedy, of course, does a whole lot more than simply “lean” conservative. Although his moderate views on issues such as gay rights and detainee treatment are welcome, Kennedy consistently places the interests of wealth individuals and corporations ahead of the more than 99 percent of Americans who cannot afford to buy and sell elections. Kennedy authored the egregious Citizens United decision that unleashed unlimited corporate efforts to buy elections and which led to the creation of Super PACs that empower billionaires to buy off candidates. He’s also consistently voted to allow corporations to force consumers and workers into a privatized, corporate-owned court system that overwhelmingly favors corporations.

If Obama is reelected, however, he could have the opportunity to replace Scalia or Kennedy and transform a Court that has bent over backwards for the one percent into a Court interested in enforcing laws enacted to benefit all Americans. Perhaps this is why super-wealthy donors taking advantage of Kennedy’s error in Citizens United are overwhelming using their vast fortunes to try to defeat Obama.

One of the oddest arguments made by the plaintiffs now challenging the Affordable Care Act before the Supreme Court is a claim that, if just one small part of the law is declared unconstitutional, the whole law must fall with it. The overwhelming majority of judges who have heard ACA cases rejected the ridiculous claim that any part of the law is unconstitutional. And, of the handful of judges to strike part of the law down, only one — the guy who included an explicit shout-out to the Tea Party in his opinion — accepted the legally indefensible position that the whole law must fall.

In their attempt to see the entire Affordable Care Act fall, however, several of the plaintiffs challenging the law committed what should be a fatal blunder — they effectively admit that their entire constitutional challenge to the law is garbage.

The primary attack on the ACA targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes — the so-called “individual mandate.” This insurance coverage provision exists because without it, the law’s other provisions ensuring that people with preexisting conditions can obtain insurance cannot be implemented. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, massively driving up costs for the rest of the plan’s consumers.

This problem doesn’t just make the insurance coverage requirement good policy, it also makes it constitutional. The Constitution doesn’t just give Congress sweeping authority to regulate the national economy, it also authorizes it “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

So, with this background in mind, consider the following passage from the private plaintiffs’ brief arguing that the entire law must fall if the insurance coverage rule goes down:

The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.

The guaranteed-issue and community-rating requirements thus cannot operate without the mandate in the manner intended by Congress. Rather, “their associated force—not one or the other but both combined—was deemed by Congress to be necessary to achieve the end sought.” To strike the mandate alone would impermissibly eliminate a central quid pro quo of the Act. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded.

So the plaintiffs admit that, without the insurance coverage requirement, premiums will become “prohibitively expensive” and that the ACA’s provisions protecting people with preexisting conditions or who otherwise are highly likely to need health care (what are known as “guaranteed-issue” and “community-rating” laws in the jargon of health policy) “cannot operate without the mandate in the manner intended by Congress.” This is a flat out admission that the Scalia Rule applies in this case. Guaranteed issue and community rating are regulations of interstate commerce, and thus Congress has “every power needed” to make them effective — including the power to enact the insurance coverage requirement.

I discuss this rather breathtaking admission at greater length in an amicus brief I filed Friday on behalf of several health provider organizations, which also includes some more details about why the plaintiffs’ attempt to take out the entire ACA has no basis in law. Ultimately, however, there is no need whatsoever for the justices to consider how much of the law stands or falls without the coverage requirement. The private plaintiffs already gave away the farm when they admitted that their entire legal challenge rests on a crumbling foundation.

Two years ago, Justice Scalia cast one of the five votes necessary to unleash unlimited corporate money on American democracy in the Supreme Court’s egregious Citizens United decision. Yet, at a panel in South Carolina this weekend, Scalia tried to lay the blame for the absurd campaign finance system he created at everyone’s feet but his own:

Super PACs have raised more than $30 million just three races into the 2012 presidential race, according to the website opensecrets.org, run by The Center for Responsive Politics. TV advertising alone in South Carolina, which is voting Saturday, is estimated at $12 million, or nearly $27 per voter when calculated using the 2008 Republican primary turnout numbers. [...]

Scalia said the blame for this type of system shouldn’t fall on the Supreme Court, which he said decides merely whether the system is legal under the U.S. Constitution. Instead, he said the ones who have to change things are the politicians who created the system and the voters who often reward the candidates who spend the most money.

“If the system seems crazy to you, don’t blame it on the court,” Scalia said, during a discussion in front of South Carolina lawyers that lasted for more than an hour.

Scalia’s attempt to shift blame is, frankly, ridiculous. While America’s pre-Citizens United campaign finance laws were far from perfect, they were at least adequate to prevent a handful of corporations from buying and selling elections. Congress passed a ban on corporate money in politics 65 years ago. The Supreme Court, with Scalia casting the deciding vote, killed that ban. If it wasn’t for the Supreme Court, the ban would still be in place.

Moreover, while Citizens United is best remembered for opening the floodgates to corporate money in politics, it also led to the creation of “Super PACs” which allow wealthy individuals and corporations to spend unlimited sums of money on shadow campaigns intended to elect particular candidates. Shortly after Citizens United was handed down, a key lower court decision used it to declare so-called “independent expenditures” a free for all for the very wealthy. Billionaires are still forbidden from giving unlimited money to a campaign, but donations to “independent” groups such as Newt Gingrich or Mitt Romney’s Super PAC are entirely unbound.

To the extent that Citizens United still allows some leeway to regulate campaign finance, the fact that Congress has not done anything to enact new regulation after the Supreme Court blew our existing system up can be explained with just one chart:

That’s the top 20 spenders on the 2012 election — 17 of whom are conservatives or Republicans. In other words, Scalia’s action in Citizens United doesn’t just mean a flood of corporate and other money, it means that this money overwhelmingly favors one political party. Republican lawmakers are more than smart enough to figure this out, and that gives them all the incentive they need to block any attempt to fix the mess Citizens United created.