How cases are decided

“Are the Supreme Court justices in the Philippines divided along philosophical lines, like their counterparts in the United States?” So asked the bishops when I briefed them during the plenary conference of the Catholic Bishops’ Conference of the Philippines a few days ago.

No philosophical divide. The question arose from my column last Sunday in which I explained that, in its decision validating same-sex marriages, the US Supreme Court was evenly divided between the four “liberal” and the four “conservative” justices. Justice Anthony Kennedy broke the tie.

Answer: Unlike their US counterparts, our Supreme Court justices do not vote along philosophical lines. In fact, I find no clear ideological divide among them. True, our justices sometimes quote from decisions of American jurists with known ideological leanings, but they do not necessarily follow the latter’s ideology.

Do our justices decide cases based on their religious belief? No, not necessarily. Some Catholic jurists have voted against Catholic teachings. But they did so mainly on legal grounds, not on their religious belief.

Do they decide according to their school loyalties? No also. Seven of the 15 current justices are graduates of the University of the Philippines

College of Law but they still voted on opposite sides in many cases. In the United States, five of the nine magistrates are Harvard alumni but they, too, voted regardless of their school affiliation.

Do our justices vote according to the wishes of the president who appointed them? No also.

Otherwise, President Gloria Macapagal-Arroyo would not be in detention now, given that 10 of the incumbent justices are her appointees.

Parenthetically, in the United States, Republican Presidents Ronald Reagan, George Bush Sr. and George Bush Jr. appointed the four conservatives while Democratic Presidents Bill Clinton and Barack Obama named the four liberals. (Note that, unlike here, no US president has named all incumbent Supreme Court justices.)

Justice Kennedy was appointed by President Reagan in the expectation that he would be a conservative. However, he now swings between the two groups depending on the case at hand.

The appointment of Supreme Court justices is always a hot election issue in the United States. Example: As a presidential candidate, Barack Obama announced he would appoint liberals. True to his promise, he appointed Sonia Sotomayor and Elena Kagan, who are known liberals. His opponent, Republican John McCain, vowed to appoint “conservative self-restrained jurists who would oppose liberal judicial activists.”

In the Philippines, no such pronouncements are heard from presidential candidates.

Judging cases on their merit. In general, how do judges, not necessarily of the Philippines, decide cases? To be sure, there are different schools of thought. The most common is the analytical school popularized by John Austin. It posits that a decision is simply the result of applying the law to a given set of facts, expressed in the formula, facts times law equals decision, or F x L = D.

Thus, if the facts show that Pedro killed Juan, the judge simply applies the law on homicide by sentencing the killer to jail. Many times, however, the facts are not plainly proven by the evidence. And even if the facts are indubitable, the law may not be clear. The analytical theory cannot fully explain how a judgment is reached when complicated issues are involved.

On the other hand, the sociological school led by Harvard Dean Roscoe Pound holds that a decision is the result of a number of stimuli being applied to the personality of a judge, expressed in the formula, stimuli times personality equals decision, or S x P = D.

Under this formula, the law and the facts are the two main stimuli, but there are others like the dire consequences of a decision on the public interest, or illness that could warp the thinking of a judge, or what I call the “plague of ships”—kinship, relationship, friendship and fellowship.

The personality of a judge refers to his/her education, training, intelligence, legal philosophy, passion for accuracy, industry, integrity, character, prior opinions and writings, etc. Pound looked at law as social engineering, not as a mathematical tool.

Procedure in judging. Process-wise, how do our justices decide cases? The complete answer is in the 38-page “Internal Rules of the Supreme Court.” Briefly, however, every petition or appeal is raffled, upon its receipt, to a “member-in-charge” (MIC) who determines whether the case should be handled by the banc (all 15 justices) or by one of the three court divisions (of five justices each).

The MIC then prepares a summary of the facts, issues and arguments presented by the petitioner, and recommends either to dismiss the petition outright for utter lack of merit, or to require a comment from the respondents. The MIC also recommends whether to grant a temporary restraining order.

After receipt of the comment, the Court, upon the MIC’s recommendation, may dismiss the petition via a resolution, or require—in a few cases—oral argument, or ask the parties to submit written memoranda.

After receipt of the memoranda, the MIC submits a report on how the case should be disposed of. Deliberations follow. If the justices agree with the recommendation, the MIC then prepares the decision. Should the justices, by majority vote, disagree, another justice is assigned to write the decision and the MIC submits a dissent. Other justices may write concurring or dissenting opinions.

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