Business World, 13 March 2016


The Philippine public has been treated to many erudite and well-reasoned treatises on how the Supreme Court (SC) should decide on Senator Grace Poe’s disqualification case. The legal issues are either involved and lengthy or simple and open-and-shut depending on who is making the case. Should the SC display judicial restraint, follow precedents, and hew closely to the letter of the law? Or should it display judicial activism and blaze a new judicial trail in pursuit of some perhaps new principle of jurisprudence? The SC did display a considerable capacity for judicial activism in allowing Juan Ponce Enrile to post bail though the charge against him is legally and constitutionally non-bailable. The new principle of jurisprudence, “humanitarian grounds,” which law students now have to learn has no accepted definition and one can drive an oil tanker through its portals. Be that as it may, not being a lawyer myself, I’d rather leave that to the legal eagles.

The purpose of this piece is not how the SC “should have decided” on the Poe case but what could be expected from revealed SC decision making in general.

Three theories on the decision making of the SC are salient and competing (see, e.g., Pacelle, Curry, and Marshall, 2011): (a) the legal theory — that what governs SC decision making are no more and no less than legal precedents and the Constitution; (b) the attitudinal theory — that what governs the SC decision making are the substantive prior preferences and ideologies of the justices; (c) the strategic theory — that SC decision making is governed by strategic considerations, especially in relation to outside forces, say, the other branches, especially elected branches of government. The President, the Senate, and Lower House have the power to retaliate (as, for example, through the budget allocation) in case of open display of contempt. Granting Juan Ponce Enrile the right to post bail on an unbailable charge clearly violates the legal theory. It may be understood as flowing from ingrained preferences (or biases as sometimes it is called) or from strategic considerations (or future payoffs as sometime it is called).

Pacelle, Curry, and Marshall (2011) tried to compare how these three theories perform as explanatory (proxied) variables in actual decisions of the US Supreme Court. Their logit regressions showed that none of the three theories can be rejected as correlates of SC decisions. I prefer to dwell on the strategic motives for decision making.

What appears to be a salient instance of strategic decision making by the US Supreme Court occurred during the New Deal Era. Then-US President Franklin D. Roosevelt — frustrated by repeated rebuffs by the US Supreme Court of New Deal legislations — threatened in 1937 to emasculate the SC with his Court Reorganization Plan. Known also as Roosevelt’s court packing plan, it came in the form of the Judicial Procedures Reform Bill of 1937.

It sought to grant the President the power to appoint an additional justice of the Supreme Court for every member of the Supreme Court over the age of 70 and 6 months and up to a maximum of six new associate justices.

Since it was Congress — not the Constitution — that established the composition of the SC, it can recompose it. Soon after Roosevelt won a sweeping victory in November 1936, the SC decided 5-4 upholding a Washington minimum wage law which the New Deal (in keeping with the Keynesian view of putting purchasing power in the pockets of the poor) favored. The tie was broken by, of all people, Justice Owen Richards who had previously opposed New Deal legislations.

In 1938, Justice Harlan Fiske Stone opined in the US vs Carolene Products that the SC should show deference to the elected branches in matters involving economic policy though not in matters of civil rights and civil liberties. The SC seemed to have acted to ease the political pressure and protect its identity (exemplified by the court packing plan).

Although the Judicial Procedures Reform Bill never became law, the message seemed to have been heard loud and clear in the halls of the US SC. But that is the US SC. We are in the land of “only in the Philippines.”

The question is what strategic considerations bore on the SC’s decision on the Poe disqualification case? We may never know.

But consider that candidate Rodrigo R. Duterte has said he will cure every ill in three months. Although that is mostly campaign bluster, to accomplish within his term what he promises implies realistically that he becomes a dictator, which calls for a clash with — and eventual dismantling of — the Supreme Court.

If Poe was disqualified, it is likely that Duterte is the only alternative to Vice-President Jejomar C. Binay, Sr. whose own defense being “No court has found me guilty” fools nobody, let alone the SC justices. If Poe was not disqualified, she will likely win (she was still leading the polls as of March 6 despite the case hanging over her campaign) and the Supreme Court should feel safer in her hands than in either Duterte’s who will not stand judicial obstacle or Binay’s who will need to judicially extricate himself. That is one possible strategic motive bearing on the SC decision. There may be others.

And, of course, their own beliefs about the suitability of the candidates for president should be factored in. One thing is sure: Poe being allowed to run is nowhere near the judicial activism displayed in the doctrine of “humanitarian considerations.”