Should he inhibit?

Conventional wisdom and expert judgment share a consensus: Associate Justice Francis Jardeleza will inhibit himself from Supreme Court deliberations on the fate of the Disbursement Acceleration Program. As solicitor general, he had not only argued the case before the Court; he had also submitted the motion for reconsideration.

I do not know whether he will; I am aware that most people would consider a failure to inhibit as  conflict of interest writ large; as a citizen, I would rather that Jardeleza (one of my teachers in constitutional law) inhibit himself, not from the deliberations, but from the voting itself.

As a journalist, however, I would like to question the conventional wisdom that holds that, “of course,” Jardeleza must remove himself from the equation. I am prompted to do so by yet another provocative question posed by former law dean Rayboy Pandan on that virtual commons we all inhabit, Facebook.

Did Chief Justice John Marshall, by common consent the most consequential justice in American history and the father of the practice of judicial review, inhibit himself from the pivotal case of Marbury vs Madison?

That 1803 case defines the work of judges as we know it today. And it demonstrates why the power of judicial review (that is, the power of judges to review acts of the legislative or policies of the executive) is inherent in the judiciary.

Marshall did not only NOT inhibit himself; he wrote the opinion. He sought to trace the roots of the Court’s powerful conclusions to precedent, but in truth the ruling was the first of its kind. The key passages still have a thrilling ring to them:

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

And again: “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it….  Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.”

These conclusions are now the axioms on which we premise appeals to our Supreme Court. They have a bearing on the argument against President Aquino’s candid criticism of the Court; the very power of judicial review cannot be removed from the high court, even through a Constitutional Convention, as long as the Constitution sees the judiciary as an essential branch of government.

But that is not the point I wish to make: My point is, if the conventional wisdom on judges inhibiting themselves from cases for possible or actual conflict of interest had obtained in Marshall’s case, we wouldn’t be talking about the power of judicial review as we understand it today.

Marbury vs Madison involves a case of midnight appointments, with some of the United States’ founding fathers on different sides of the divide. John Adams, the second president, appointed William Marbury justice of the peace (there were other appointments), but the appointment papers, signed by Marshall, then the acting secretary of state, were not delivered in time. When the new president, Thomas Jefferson, refused to honor the commission, Marbury sued James Madison, the new secretary of state, to compel him to enforce the appointment. By the time the case reached the Supreme Court, Marshall was already chief justice.

Should Marshall have inhibited himself?

Perhaps it can be argued that the American founding fathers were busy creating a nation out of the newly independent states, and Marshall seized the opportunity to define the role of the judiciary. But there is no arguing that Marbury vs Madison put the supreme in “Supreme Court.”

I wonder: Did Thurgood Marshall, the brilliant lawyer who won most of the civil rights cases he championed and argued for Brown vs Board of Education, inhibit himself from all civil rights cases when he finally sat in the US Supreme Court? Will Associate Justice Marvic Leonen inhibit himself from the inevitable case questioning the constitutionality of either the Bangsamoro peace accord or the Bangsamoro Basic Law?

I do not know the answer, although the opportunity cost of removing Leonen’s expertise from any discussion involving the peace pact he did so much to put together sometimes seems to me exorbitant. But perhaps we can all do better than merely saying “of course” to the question of inhibition—and think the matter through.

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