Origin of judicial activism

During the past several Mondays, I took up decisions of the Gesmundo Court that I humbly consider continuations of the activist and libertarian streaks of its predecessors. Today, let me explain the origin of judicial activism and its confluence in our judicial systems next Monday.

OUR CONSTITUTIONS FROM 1935 TO THE PRESENT took their bearing from the Constitution of the United States (US), especially in their adherence to the republican presidential system, the tripartite allocation of governmental powers, and the sanctity of human rights. Understandably then, our Supreme Court also took its bearing from the Supreme Court of the United States (Scotus). However, it was only in the 1950s that the Scotus turned activist and libertarian.

In 1961, after finishing his term but still savoring public acclaim for his successful presidency, Dwight D. Eisenhower was asked by CBS news producer Fred Friendly whether he had made any great mistakes as the leader of the most powerful country in the world. Immediately and without hesitation, the World War II hero snapped, “Yes, two, and they are still sitting in the Supreme Court.”

Eisenhower was referring to Chief Justice Earl Warren and Justice William Brennan, both of whom he appointed to the highest American court with the expectation that they would allow the government the widest latitude in policymaking. The two teamed up with Justices Hugo Black and William Douglas to form a quartet that led the Warren court in overhauling American jurisprudence and expanding the reach of civil rights and personal liberties, to the dismay of Eisenhower who wanted a more restricted role for the judiciary. The four were joined later on by Justices Thurgood Marshall and Abe Fortas.

Though initially despised by the liberals as a “bluff” … a “mediocre,” “an outgoing politician” with no judicial experience and no intellectual gravitas, Warren was heralded at his retirement by the same erstwhile critics as one of the greatest US chief justices. He is credited for navigating such earthshaking decisions as Brown v. Board of Education (May 17, 1954), Miranda v. Arizona (June 13, 1966), and Terry v. Ohio (June 10, 1968).

These, together with other comparable rulings—like Mapp v. Ohio (June 19, 1961), NY Times v. Sullivan (March 9, 1964), Gideon v. Wainwright (March 18, 1963), and Baker v. Carr (March 26, 1962)—defined American freedoms and spelled out famous phrases like “separate is not equal,” “read him his rights,” “one-man-one-vote,” and “fruit of the poisonous tree.”

HOWEVER, THE ACTIVIST WARREN COURT HAD ITS OWN INTERNAL OPPOSITION. Some of the most revered names in jurisprudence—including Felix Frankfurter, the acclaimed master of the “Harvard School” of jurisprudence; and Robert Jackson, the renowned former prosecutor during the Nuremberg war crime trials—never tired of lecturing the radicals on the need for “judicial restraint” and of condemning them for periodically entering the “political thicket.”

The Frankfurter-led conservatives believed that the Supreme Court existed “to establish rules of law, not to provide justice” and solutions to every problem of the nation. Thus, they mastered rules of procedure, ruled narrowly, and seldom granted certiorari. They left policymaking to the elected leaders of the country.

On the other hand, the activists thought that the Harvard School was “too mechanical,” and that it had excised “all heart out of the law.” They contended that the threat to the State did not come from liberal justices usurping the prerogatives of the President and Congress, but from justices abdicating their responsibility to protect the people from tyrannies of the Establishment.

THIS DIVISION IN AMERICAN LEGAL THOUGHT shifted from one camp to the other as Republican US presidents appointed conservatives to the Scotus while their counterpart Democrats named liberal justices such that for many decades, the nine-member Scotus was almost evenly divided 5-4 or 4-5 between the two camps.

The first woman member of the Scotus, the amiable but fiercely independent Sandra Day O’Connor, and after her retirement on Jan. 31, 2006, our friend, the brilliant Justice Anthony Kennedy, held the so-called “sway vote” as they voted conservative or liberal as they saw fit case-to-case.

Recently, the Scotus has definitely become conservative because President Donald Trump was able to name three conservatives to the Scotus (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) thereby transforming the Scotus into a conservative bulwark, 6-3. This is why, for instance, the Scotus was able to overturn the controversial Roe v. Wade (Jan. 22, 1973) that allowed women a choice to have an abortion. Voting 6-3, it declared in Dobbs v. Jackson (June 24, 2022) that there is no constitutional right to abortion. Since membership in the Scotus is for life, the liberals will take generations to reverse Dobbs v. Jackson, as it did for the conservatives to reverse Roe v. Wade.

While US justices have a choice on whether to be liberal or conservative, their Philippine counterparts do not have such luxury. Why? Read the answer next Monday.

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