How much of a difference will it make to the Supreme Court whether Barack Obama or Mitt Romney wins the 2012 presidential election? This will depend, of course, on which, if any, of the current Justices step down in the next four years and on whether the president elected in 2012 is successful in filling those vacancies with the kind of nominee(s) he wants.
At the outset, I want to put aside four possible scenarios: (1) Romney is elected and gets no nominations; (2) Obama is re-elected and gets no nominations; (3) Romney is elected and gets to replace Scalia, Kennedy, Thomas, Roberts, and/or Alito; (4) Obama is re-elected and gets to replace Ginsburg, Breyer, Sotomayor, and/or Kagan. These scenarios are uninteresting, because they will not bring about any significant change in the ideological makeup of the Court.
The more interesting question is, what happens if Romney is elected and gets to replace, say, the oldest “liberal” Justice (Ginsburg) or if Obama is elected and gets to replace the oldest “conservative” Justice (Scalia)? In such circumstances, Romney would presumably nominate someone similar to the most recent Republican appointee (Alito), and Obama would likely nominate someone similar to the most recent Democratic nominee (Kagan).
We therefore have two scenarios: if Obama is elected Kagan2 replaces Scalia, and if Romney is elected Alito2 replaces Ginsburg. How would these changes affect the future of constitutional law?
Before going any further, I should note that I am using the terms “conservative” and “liberal” rather loosely. In fact, as several scholars have demonstrated, relative to all Justices who have served in the past seventy-five years, the recent “conservative” Justices (especially Rehnquist, Scalia, Thomas, Roberts, and Alito) have been very conservative. Indeed, they are the five most conservative Justices to serve on the Supreme Court in three-quarters of a century.
By contrast, the “liberal” Justices in recent years (Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan) have been only moderately liberal. They are nowhere near as liberal as Justices like Brennan, Warren, Marshall, and Douglas. They have not been nearly as extreme in their liberalism as recent conservative Justices have been extreme in their conservatism.
Moreover, the two so-called “swing Justices” in recent years (O’Connor and Kennedy) have in fact been quite conservative, though not as extreme in their conservativism as Rehnquist, Scalia, Thomas, Roberts, and Alito.
In the rest of this essay I will therefore refer to the “very conservative” Justices (Rehnquist, Scalia, Thomas, Roberts, and Alito), the “moderately conservative” swing Justices (O’Connor and Kennedy), and the “moderately liberal” Justices (Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan). Returning now to the possible impact of the 2012 election on the Supreme Court, perhaps the best way to address that question is to look back over the Court’s performance since 2000 to see whether any important cases would have been decided differently if Kagan2 had been on the Court instead of Scalia or Alito2 had been on the Court instead of Ginsburg.
To get a handle on this question, I asked several colleagues (without telling them why I was asking) to identify for me the most important constitutional decisions since 2000. They came up with a list of eighteen cases, ranging across the a broad spectrum of issues involving, for example, the 2000 presidential election, gun control, voter disenfranchisement, affirmative action, abortion, habeas corpus, due process for terrorist suspects, takings of private property, the death penalty, campaign finance reform, the freedom of religion, the rights of gays and lesbians, and the Commerce Clause.
For the lawyers among you, the eighteen cases are, in chronological order, United States v. Morrison (2000) Bush v. Gore (2000), Zelman v. Simmons-Harris (2002), Lockyer v. Andrade (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Hamdi v. Rumsfeld (2004), Roper v. Simmons (2005), McCreary County v. American Civil Liberties Union (2005), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), Gonzales v. Carhart (2007), Parents Involved in Community Schools v. Seattle School District No.1 (2007), Crawford v. Marion County Election Board (2008), Boumediene v. Bush, (2008), District of Columbia v. Heller (2008), Citizens United v. Federal Election Commission (2009), and National Federation of Independent Business v. Sebelius (2012).
How did the thirteen Justices who participated in these eighteen decisions vote? The moderate liberal Justices voted for the more liberal position ninety-seven percent of the time (seventy of seventy-two votes). The very conservative justices voted for the conservative position ninety-eight percent of the time (fifty-nine of sixty votes). This shows just how polarized the Justices are. The all-important swing Justices cast nineteen of their twenty-nine votes in line with the very conservative Justices. That is, they joined the very conservative Justices two-thirds of the time. The very conservative Justices were in the majority in nine of the cases and the moderate liberals were in the majority in nine of the cases.
With this information, and re-counting votes, we can reasonably infer that if Kagan2 had been on the Court since 2000 instead of Scalia, the moderate liberals would have won eight of the nine cases they lost and seventeen of the eighteen cases. On the other hand, if Alito2 had been on the Court instead of Ginsburg, the very conservative justices would have won seven of the nine cases they lost and sixteen of the eighteen cases.
In sum, then, we can reasonably conclude that given the current makeup of the Supreme Court a change in the ideology of only one Justice will have a profound impact on the course of constitutional law. Let me say it again for emphasis: Had Kagan2 been on the Court in these years instead of Scalia, the moderate liberals would have won seventeen of the eighteen cases, and if Alito2 had been on the Court instead of Ginsburg, the conservatives would have won sixteen of the eighteen cases.
There is no reason to think that the Court’s decisions in the future will not be similarly determined by the replacement of a moderately liberal Justice with a very conservative one or the replacement of a very conservative Justice with a moderately liberal one. The implications for such issues as abortion, same-sex marriage, the establishment of religion, affirmative action, the rights of women, voting rights, congressional authority, the death penalty, gun control, and criminal procedure are dramatic.The stakes in the 2010 election for the future direction of the Supreme Court are, in short, are incredibly high.
ndeed the 13th General Election has qualified as the mother of all general elections. And it is no accident hence making the country most vulnerable.
While Lawyers for Liberty in principle supports the setting up of the Royal Commission of Inquiry (RCI) on immigration problems in Sabah, it views with concern the escalating rhetoric and demands surrounding the RCI that may have serious repercussion on the lives and human rights of some of the most vulnerable people in Sabah including undocumented women and street children of refugee/ migrant descent. Many live in poverty and a life of exploitation, unable to access basic social services but are also unfairly blamed and easily targeted by politicians for social ills in the state.
It goes without saying that all citizenship matters including grant of citizenship, identity documents and registration in the electoral roll must be conducted properly and in accordance with established laws, regulations and practises and not through corrupt practises, fraud or for improper political gains.The Election Commission (EC) yesterday denied that many foreign workers have been included in the electoral rolls using the identification code of ’71′ which referred to Malaysians born overseas.
Its chairman, Tan Sri Abdul Aziz Yusof, said the matter should not have been disputed as to date only 171,023 registered voters were recorded having identification cards with that code.
Before 2001, code ’71′ was used for Malaysians born abroad and foreigners who had obtained permanent resident status.
However, after 2001, all foreigners who obtained PR were no longer referred with code ’71′ and were in fact using the code for their respective country of birth, such as 66 for Singapore and 61 for Indonesia, he told reporters after launching the ‘EC meets political party leaders and the media session’ here yesterday
Abdul Aziz commented on the matter after certain quarters disputed the use of code ’71′ purportedly to register foreign workers as voters after several names with code ’71′ as the middle number of their identification cards were detected on the electoral rolls.
He said that according to the EC’s master electoral rolls, there were 8,743 registered voters in Sabah and the Federal Territory of Labuan with code ’71′ and Selangor recorded the highest number with 32,485 people.
He added that there had also been requests from voters working in other states in Malaysia to cast their votes in the place they are currently in, for their state, but it is not possible.
“It will be a precedent. Others may make the same request and it would create another problem.
“Besides, it is normal to see many Sabahans or people from other states to be in places like Selangor, as they migrate to seek employment,” he said.
Abdul Aziz explained that for one to continue practising their rights as voters, they may change to their current address.
He also said there was always doubt on the electoral roll despite EC’s daily effort to ‘clean’ it.
“Some claim it is ‘dirty’, but I can assure it is clean. There may be some technical problems, but we will not let it compromise any condition. We too want it to be 100 per cent clean, but how can you do it when a minute later, someone dies or changes his citizenship, this thing is dynamic and change can happen within seconds.
“But there is not much we (EC) can do without the cooperation from the people. EC is bound by the law, we cannot simply make any changes without the request of the owner,” he said.
“We conduct our meeting on a monthly basis and every month, a lot of corrections are done. As of June this year, a total of 2,919 corrections were made, and locality tops the list, followed by names, gender and religion,” he said..
Abdul Aziz added that in the first quarter of this year, a total of 18,412 mistakes were detected, and the number grew during the second quarter to 27,785.
He said it was also beyond their jurisdiction to delete the names of aging voters.
“We cannot classify them as doubtful voters or inactive citizens, unless someone comes and reports to NRD that they have passed away or have changed their citizenship. Meaning, for as long as their names are in NRD, we cannot delete their names and they have the right to vote. Mind you, the oldest voter is from Sabah at the age of 129, followed by a Sarawakian,” he said.
Last year, he disclosed that a total of 68,516 names were deleted after they had been declared deceased by NRD.
He also urged registered voters to check their voting details and status within the third quarter of this year to be eligible to vote in the coming 13th general election.
“Voters must fully utilise the months of July, August and September to check that their details are correct, such as the spelling of their names, locality, gender and identity card numbers.
“If there is any mistake, correction can be done at the National Registration Department and notify the EC immediately for rectification,” he said.
He disclosed that there are four easy methods to check their status and details, namely through their website at www.spr.gov.my, or short messaging system by typing spr(space)semak(space)MyKad number, or visit or contact their headquarters or offices at the respective states.
Since 1957 UMNO has effectively carried out the population engineering of our country to ensure its long-term survival by creating the myth of a two pronged “Ketuanan Melayu” (Malay Supremacy).
“Ketuanan Melayu” for the Malay masses who are lull into a feeling of being superior over the non-Malays because of their numbers and “Ketuanan Melayu” for the UMNO Malay political elites through the accumulation of massive material wealth for themselves and their cronies.
And while UMNO has failed by almost any measure you chose to gauge them – good governance or morality – without question they have succeeded too well in the engineering of the population of this country of ours.
The duplicity of UMNO in proclaiming Satu Bangsa, Satu Negara while all the while undertaking a relentless program to whittle down the numbers of the non-Malays through very precise and focused initiatives is breathtaking in its effectiveness!readmorehttp://themalay-chronicle.blogspot.com/2012/08/equating-sabahs-freedom-and-revolution.html
Consider this:
In 1957:
– 45% of the population are Chinese.
– 12% of the population are Indians.
In 2010
– 25% of the population are Chinese.
– 7% of the population are Indians.
Over 600,000 Chinese and Indian Malaysians with red IC were rejected repeatedly when applying for citizenship and possibly 60% of them had passed away due to old age.
Since 1957:
– 2 million Chinese have emigrated.
– 0.5 million Indians have also emigrated overseas.
– 3 million Indonesians migrated to Malaysia to become Malaysian citizens with Bumiputra status.
Now the non-Malays are well aware of this tinkering and engineering of our population and it would do us Malays no good to say that it was UMNO doing and that we had no hand in what happened. As a Malay I was then comfortable that UMNO was the dominant partner in the Barisan Nasional.
It was comforting to know that Malays controlled four of the five major banks.
Education? Between 1968 to 2000:
– 48 Chinese Primary Schools closed down.
– 144 Indian Primary Schools closed down.
– 2637 Malay Primary Schools were built.
Of the total government budget for these schools 2.5% were for the Chinese Primary Schools, 1% for the Indian Primary School and 96.5% for the Malay Primary School.
Petronas Petrol Stations? Of the 2000 station the Malays owned 99%.
Yes, we Malays were indeed in control. In control of what?
We were in control of the all the business licenses and permits for Taxis and Approved Permits.
We were in control of Government contracts of which 95% were given to Malays.
We were in control of the Rice Trade through Bernas that bought over 80% of Chinese Rice Millers in Kedah.
We were in control of UMBC, MISC and Southern Bank – all previously owned by Chinese.
We were in control of bus companies. Throughout Malaysia MARA buses could be seen plying all the routes. Non-Malays were simply displaced by having their application for bus routes and for new buses rejected.
Every new housing estate built had a mosque or a surau. None, I repeat “no” temples or churches were built for any housing estate!
Still unable to stand tall – why?
So why with control over all these highly visible entities and business opportunities are the Malays still unable to stand tall and with pride over and above the non-Malays? We are unable to so do because it was not the Malays that benefited from these opportunities- UMNO did.
Why must UMNO constantly harp about the need to spoon feed the Malays – about ketuanan Melayu when it is already in place and about Bumiputra status and all the privileges and rights that goes with that status?
And as a Malay I want to ask the non-Malays why do you still choose to live in a country whose government has by its actions and deeds done whatever it could to make you not feel welcome? The non-Malays I know have all told me the same thing – Malaysia is their country – they know of no other country they can call their own. And so they stay and put up with the abuses.
The difference now is that there are enough Malays who are shamed by the antics of this Malay political organization called UMNO. There are enough Malays to tell the non-Malays that we feel your pain. We understand your frustrations and despair at not being treated as equals in a country you call your own.
And enough non-Malays have migrated abroad to cause our country to understand that their loss is another country’s gain. A loss, which our country can ill afford to sustain.
Karma at GE-13
And more importantly all this ground swell of disgust and contempt at UMNO has manifested itself in a way these political idiots understand – losing our votes in the 12thGeneral Elections. Amen for that.
And so we wait for the 13th General Election which we hope will dish out the relevant karma for UMNO and its Barisan Nasional partners.
Meantime understand what they have done to us all – not only the non-Malays but also to the Malays and do not allow Barisan Nasional to play the race card and start their divide and rule antics on us anymore.
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