Legal realism theory

Passion For Reason

The other meaning of ‘political court’

By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:16:00 04/22/2010

THE INQUIRER’S EDITORIAL on Thursday struck at the heart of the raging

debate on whether President Macapagal-Arroyo is entitled to appoint the new
chief justice: the “uncomfortable truth” about the “public perception of the
high court as politically partisan.” I share that concern but offer another way to
telling what makes a court political. All courts are political. It’s just a difference
of whether they are attuned to the crass politics of personal favors (bad), or to
the loftier politics of constitutional values (good).

Locally, a judge is considered “political” if he decides according to forbidden

loyalties to favor either his political patron or the highest bidder among the
litigants. That is politics in a conspiratorial, Machiavellian sense. That is “politics
with a small p,” and it is wrong. To find those judges, you must turn to Sherlock
Holmes.

Abroad, there is a classic school of thought called Legal Realism advanced more
than a century ago by Oliver Wendell Holmes Jr., who recognized that all judges
are human beings affected by the whole range of biases acquired over a lifetime
—and that, he said, was simply inevitable. The goal therefore was to expose and
surface those biases, and test them against the values enshrined in the
Constitution. When a judge adheres to “politics with a capital P,” it is good. That
is why Holmes concluded: “The business of a law school is … to teach law in the
grand manner and to make great lawyers.”

Holmes said: “The language of judicial decision is mainly the language of logic.
And the logical method and form flatter that longing for certainty and for
repose… But certainty generally is illusion, and repose is not the destiny of man.
Behind the logical form lies a judgment as to relative worth and importance of
competing legislative grounds, often an inarticulate and unconscious judgment,
it is true, and yet the very root and nerve of the whole proceeding. You can give
any conclusion a logical form.”

The critics of the Supreme Court have embraced the wrong Holmes. That is why
the Supreme Court’s latest ruling contained a “Final Word,” which is worth
quoting here.

“It has been insinuated [that] because all the Members of the present Court
were appointed by the incumbent President, a majority of them are now
granting to her the authority to appoint the [next] Chief Justice. … The
insinuation is misguided and utterly unfair. … The Members of the Court vote on
the sole basis of their conscience and the merits of the issues. Any claim to the
contrary proceeds from malice and condescension.”

I am prepared to grant as much to the Court and lament the personal attacks,
especially against Justice Renato Corona and, even worse, against his wife. The
mudslinging demeans both the office of the chief justice and the Court itself.

SC critics are better off with the Legal Realist test. For instance, they invoke the
separation of powers and the independence of the judiciary from the executive.
The SC decision rightly says that, on the contrary, if you want the chief justice to
be inclined to check the president, it’s better to have the outgoing president do
the appointing. From a purely textual standpoint, they’re absolutely right. If the
goal is to have checks and balances, why have the “check-er” appointed by the
“check-ee”? But from a historical standpoint, they cannot be more wrong. The
true threat to the Constitution right now is an outgoing Arroyo scheming to
insulate herself from the courts after her presidential immunity dissipates into
thin air by June 30, 2010.

That only brings us to the next problem: translating what is historically

necessary into what is legally correct. The real feat of the Supreme Court is that
it gave logical form to a substantive conclusion that I personally think is really
far out, as I have explained in past columns.

The Court had several choices. One, it could have washed its hands and declared
the case premature. Two, it could have affirmed established doctrine, and held
that judicial appointments including that of the chief justice are covered by the
elections ban. And three, as it actually has done, the Court has seized the bull
by the horns, reversed the case-law, and ruled that the elections ban did not
apply to the appointment of the chief justice.

From the standpoint of legal doctrine, either Option 1 or 2 would have offered
the path of least resistance. Either way, the Court would be able to reconcile
what is historically desirable with what is legally settled. But Option 3 takes the
cake because it pushed for deviations from established doctrine while extending
the reach of a lame-duck President, insulating herself from justice.

To take Option 3, the Court had to deviate from settled rules: that its clashing
provisions must be reconciled and that the two competing clauses of the
Constitution here can be reconciled by merely letting the next president
appoint. The lowest point was when the Court gratuitously addressed a
question not even raised squarely before it—whether the President can appoint
even without a list from the Judicial and Bar Council—and suggested it would
say yes.

On the other hand, what troubles me with the usual criticisms of the latest SC
ruling is the ideological position that courts should mechanically apply the law
and not interpret it, as if that were ever truly possible, and that courts should
mainly adhere to established doctrine and never reverse it. Remember that the
most magnificent strides in civil rights were made by bold justices who dreamt
of a more just world and dared to stretch legal texts way beyond the rigid
meanings that had caused pain to countless innocents.

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see:
http://opinion.inquirer.net/inquireropinion/columns/view/20100422-
265878/The-other-meaning-of-political-court