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With Due Respect

Legal philosophy

Interestingly, my column last Sunday (“SC tops SWS poll”) elicited—aside from the usual Twitter-type, knee-jerk reactions—lengthy and perceptive comments on the need to know the legal philosophy of Supreme Court justices.

Antonin Scalia. In that piece, I opined that, in addition to the qualifications required by the Constitution, magistrates—especially Supreme Court justices—should (1) be industrious so they can help solve the recurring case backlog, and (2) have a philosophy of law so their decisions would be predictable, and jurisprudence stable.

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I do not have the space to discuss in detail the interesting feedback from several lawyers, political scientists, and even a retired De La Salle University professor, Dr. Adelaida Lacaba-Bago, who related Lawrence Kohlberg’s theory of moral development with legal philosophy and my conversations with US Justices Antonin Scalia and Anthony Kennedy.

But may I refer them to “Scalia, A Court of One” by Bruce Allen Murphy (published 2014 by Simon and Schuster, NYC). This very new, 644-page book labels Scalia as “the most recognizable and most controversial member of the Court.”

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He is berated or praised (critics are never neutral on him) for his “originalism theory for deciding cases, believing that the Constitution and its amendments should be interpreted according to the meaning of the words as people understood them at the time they were written.”

A high school valedictorian, top student at Georgetown, law review editor and magna cum laude at Harvard, Scalia is known for his “unwavering adherence to the traditional Roman Catholic faith” with St. Thomas More as his model, and for his “love for argument.”

The US Court’s most senior associate justice in length of service, Scalia, 78, is viewed to belong to “the same voting clique” as Chief Justice John Roberts and two other “conservative” justices. They follow the “judicial restraint” doctrine espoused by the oft-cited Harvard guru, the late Justice Felix Frankfurter. They face four dedicated “liberals or progressives” in the nine-member US Court.

Anthony Kennedy. The swing vote is held by Justice Kennedy, also 78 and also Catholic (the religious faith of justices is minutely monitored in the United States, with five Catholics on board now), who frequently leads the liberals. Following tradition, Kennedy—as the second most senior member—is given the power of naming the decision writer whenever he sides with the four liberals and defeats the four conservatives.

No wonder the current US Court is many times referred to as the “Kennedy Court” rather than the “Roberts Court,” in honor of this Stanford, London School of Economics, and Harvard Law (cum laude) alumnus, whom Scalia has “belittled in so many earlier cases.” Perhaps to his chagrin, Kennedy is now endearingly called the “shadow chief.”

Even more than in the Philippines, the appointment of US Supreme Court justices is a politically-sensitive matter. Indeed, the ideological future of the federal judiciary is indubitably raised and decided as a tantalizing issue during US elections.

For instance, during the 2008 presidential election campaign, Democrat Barack Obama boldly proclaimed that he favored “somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom; the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.” His opponent, Republican John McCain, promised to appoint “conservative self-restraint jurists who would oppose liberal judicial activists.”

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Sotomayor and Kagan. True to his promise, Obama—celebrating his stunning victory—elevated two women liberals, Yale alumna Sonia

Sotomayor in 2009, the first Hispanic and third woman to be named to the US Supreme Court, and former Harvard Law School dean and solicitor general Elena Kagan in 2010. In 2013, Sotomayor affirmed her liberal roots in her best-selling book, “My Beloved World.”

Historically, Democrats, like Obama and Bill Clinton, tended to appoint liberals, and Republicans, like Ronald Reagan and George Bush,

favored conservatives. But their appointees sometimes overrule them.

For instance, Republican Dwight Eisenhower, wanting to have a conservative Supreme Court, named Earl Warren, former Republican governor of California, chief justice, and William Brennan, associate justice.

However, after maturing in their seats, the duo became the leaders and inspirers of the progressives who redefined the US Bill of Rights with

libertarian decisions junking racial segregation, creating the right of abortion for women, and inventing the “Miranda rights” of criminal suspects.

After his term, Eisenhower was asked over national television what mistakes, if any, he made as president. The World War II hero quipped, “Yes, two mistakes, and they are still sitting in the Supreme Court.”

Presidents in our country have also tried to influence our Supreme Court by selecting justices for their perceived loyalty, not for their philosophical or ideological orientation. But, like Eisenhower, they, too, are often frustrated because, once ensconced in their seats, their appointees become independent as mandated by our Constitution.

In my humble view, presidents should not despair when their appointees perform their constitutional duties with “competence, integrity, probity and independence.” Rather, they should be proud because our people will appreciate, and history will vindicate, them for their prudent choices.

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TAGS: Anthony Kennedy, Antonin Scalia, artemio v. panganiban, opinion, Supreme Court, SWS, With Due Respect
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