The Explainer: Supreme Court Challenge

The Emperor Nero infamously made his horse a senator to make an ass of the Senate. The Ancient Greeks had a saying that those whom the Gods wished to destroy, they first made mad. And since the Ancient World’s conception of history was to tell instructive tales of the moral virtues and failures of great men, the story of Nero’s lunacy has come down to us.

The clash of institutions –between the instinctive desire to dominate of executives and the traditional, conservative outlook of more deliberative bodies- can take on a morality tale as in the story of Nero.

Our institutions may be modern but also in a sense, modeled on Rome: in terms of our own legal system, inherited in part from the West, we even place our supreme courts in buildings made to look like temples: hushed, remote, mysterious and secretive; with priests in robes as oracles and guardians of the law. But there are times when the antique collides with the modern, and when the men in robes end up dragged, kicking and screaming, into very public fights.

The collision between the branches of government usually involves the chief executive versus the legislature but it can also involve presidents colliding with the Supreme Court. In the United States, Barak Obama is on a collision course with Supreme Court after he criticized the Justices to their faces, over their recent decision allowing corporations to make substantial political donations.

Obama has public opinion on his side, which is highly critical of the Supreme Court decision. But he is burdened by the example of Franklin D. Roosevelt. Frustrated by New Deal legislation repeatedly being struck down by a conservative Supreme Court, he lost a lot of political capital proposing a law to expand the Supreme Court, so he could pack it with new appointees and overturn the conservative majority. In the end, FDR’s proposal didn’t prosper –but the Justice also became more reasonable in interpreting the law.

The problem of what presidents should do with their powers in the face of those powers affecting the free hand their successors expected to have in making appointments, had cropped when Quirino lost his bid for relection in 1953. He decided he should pay some political debts by making some midnight appointments too. One of them was to former Chief Justice Manuel Moran, who he’d convinced to leave the Supreme Court to become our first ambassador to Spain. But Moran, even if he wanted to return to the Supreme Court, declined the appointment. Moran said, as the Supreme Court itself pointed out when the issue between Garcia and Macapagal came up, that presidents should have a free hand in making important appointments, including the Supreme Court. Shortly before he left office, Garcia, exercising his powers until the very last moment of his presidency, saddled his successor with a multitude of appointments. These were voided by Macapagal and the Supreme Court said Macapagal was right: Garcia had no right to make the so-called midnight appointments

Moran’s delicadeza cost him his chance to return to the Supreme Court. Magsaysay himself criticized Quirino’s handling of his powers and one of his first acts was to investigate pardons Quirino had made. But whether it was Quirino or Garcia wanting to get back at the men who defeated them, by burdening them with appointments their successors expected to make, two things emerged as obstacles: personal delicadeza like Moran who knew it wasn’t worth it to accept questionable appointments, and the Supreme Court which imposed legal limits on the exercise of the appointing power of the presidency during the election and transition period between administrations.

President Marcos himself took another tactic, as he outlined in his diaries, when faced with the one institution he felt could rally popular opposition to martial law. He threatened the justices while giving them a chance to save face. His threat was a simple one: if the Supreme Court didn’t approve his junking the 1935 Constitution, he’d simply proclaim a revolutionary government and all the Justices would be out of a job. As one Justice told him, they’d do whatever he said so long as the appearances of legality were retained. That Justice became one of Marcos’ Chief Justices under martial law.

In the end, a kind of karmic retribution took place in 1986 when a revolutionary government was finally proclaimed, and all the Justices submitted their resignations to Cory Aquino. In a sense, the Supreme Court was reincarnated by means of this collective career suicide.

President Ramos in the closing days of his administration tried to make judicial appointments but the Supreme Court declared them illegal, pointing out the Constitution imposes a strict ban on appointments, not just to the executive department, but the judiciary, during the election season. This was seen as a continuation of the principles laid down since the days of the Garcia midnight appointments case.

But the Supreme Court in more recent years has taken to being more adventurous, so to speak, starting with its creating the doctrine of constructive resignation to justify the transition from Estrada to Arroyo.

Two years later, in 2003, when then Rep. Gilberto Teodoro Jr. tried to impeach then Chief Justice Davide over his handling of the Supreme Court’s funds, the Supreme Court squared off with the lower house, ordering it to stop the impeachment effort. This threatened a three cornered fight, since it would require the president’s police powers to enforce the Supreme Court’s will if the House defied it. The House folded.

Subsequent efforts by the House and the President to find ways to either assert executive power and privileges or to maneuver creative ways to amend the Constitution, have had mixed results in the Supreme Court, generally but not totally negative in terms of the desires of the other two branches of government.

Lately, the papers and other media have been abuzz over the President saying that despite the ban on appointments, she can and should appoint the next Chief Justice. The question eventually raised before the court was, should the Judicial and Bar Council, despite the election ban on appointments, proceed with submitting a short list to the President? The Supreme Court decided it should. On whether the President should then fill the vacancy during the remainder of her term, the Supreme Court didn’t say.

When Chief Justice Puno retires in mid-May, by tradition, next in line are the two most senior Justices, Carpio and Corona. Insiders say Corona is more acceptable as Chief Justice to both the President and Puno than Carpio. In addition, if Carpio becomes Chief Justice, Corona will never be Chief because he retires earlier; but if Corona is made Chief, Carpio can still become Chief Justice in 2018. If the President makes no appointment, the next President, based on the 90 day vacancy period in the Constitution, still has 45 days to appoint the next Chief Justice.

At this point, the Supreme Court issued a 9-3-1 decision favoring the President’s arguments, but two things still have to take place. The decision can be appealed; and after that, it is still up to the President whether she will exercise her power or not. But the whole thing has put the spotlight on the Supreme Court, turning a point of law into a political issue at a time when political passions are riding high. This reminds us that the courts do not operate in a vacuum: not just today, but every day, the Supreme Court is like any other institution in that the public has an ever-changing opinion of it.

And that includes the next Chief Justice: if public opinion polling shows the chief magistrate steadily falling in public prestige, then the circumstances surrounding the appointment of the next chief can either enhance or diminish the standing of the position itself and possibly, of the entire court.