Collegiality in court decisions a myth

The usual mantra in defense of any Supreme Court decision that is seen unflatteringly as “less than brilliant” or “against common sense” is that it is an opinion arrived at “after consultation” with the other members of the Court. This is known as the concept of “collegiality,” that is, it is not the opinion alone of its writer (ponente), but reflects a consensus among the justices. So the retort always goes like this: Who are you to question the “collective wisdom and brilliance” of the highest magistrates of the land? We don’t know if that should be reassuring—or alarming!

Meant supposedly to disabuse the minds of skeptics who refuse to believe that every decision arrived at is a result of common deliberation and careful study by all members of the Court and that therefore serves as a guarantee of the “sterling quality of its product,” still, why are we not impressed? Well, here’s a flash! Has anyone ever noticed how many conflicting decisions bear the “concurrence” of the same members of the court? That certainly gives the impression that such members didn’t care a hoot if the decision they were “concurring in” clashed with another decision they had earlier “concurred in”!

An aunt-lawyer who just recently attended a Mandatory Continuing Legal Education told of a retired Court of Appeals justice who confessed (after his lecture) that it is humanly impossible for all members of a Court of Appeals division to study each case raffled to it. Being the designated writers of their own numerous cases, they simply have no time to go deep into the cases assigned to the other writers. More often, they just “concur” as a matter of courtesy, if not routine! That is how it has been since time immemorial.

Indeed, the less gullible among us believe that such much-vaunted “collegiality” is nothing but a myth; that in reality only the ponente makes the decision and the other justices just “concur” as a mere matter of courtesy. Very rarely are incisive dissenting opinions found—and mostly in public-interest cases where a sense of duty may prove too compelling for some of them to shunt aside. But in cases involving ordinary mortals who don’t count and have no clout whatsoever, prayer is the only wellspring of hope that the ponente might find it in his/her heart to decide the cases on the merits. The joke being told and retold in whispers is, if the parties stand on “equal footing” (i.e., no one can afford to pay the cost of making “gapang”), chances are excellent that justice will be served impartially! What a sad, miserable state of affairs.

—ANNALEE LAUDER,

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