Public scrutiny of the Supreme Court

THE WIDE PUBLIC CRITICISM OF THE RECENT decision of the Supreme Court sealing the lips of Secretary Romulo Neri has generated a side issue: Is the Supreme Court fair game for public and media scrutiny?

Deities on Mt. Olympus. When I was a student of law half a century ago, courts were sacrosanct. Supreme Court justices were revered like little deities on Mt. Olympus, whose pronouncements were accepted with finality by the litigants and the public. No one dared lampoon the Court or its gods.

Moreover, when a litigation was pending, the parties and their counsels refrained from publicly commenting on its merits. Under the strict sub-judice rule, arguments and opinions were confined to the courtrooms and the pleadings of the parties. To argue a case elsewhere, especially in the absence of the opposing party, was unheard of and deemed unfair.

However, the information revolution has invaded the judicial fortress. Our people power culture has widened democratic space and encouraged our citizens to question plainly unreasonable impositions from whatever source. Our new Constitution has ordained transparency and accountability as primary principles of governance.

The sub-judice rule has been relaxed in public interest cases in which not every affected citizen could possibly be heard in the courtroom. Hence, public scrutiny, both the pros and the cons, of these cases, especially the judgments thereon, have become part of life in our democracy. Magistrates are presumed to be prudent enough to be able to separate the chaff from the grain in these public discussions.

Worldwide change. Aware of this development, our Supreme Court created a public information office in 2000 and has, since then, regularly named a spokesperson who routinely dealt with media. This sea change of judicial attitude towards public scrutiny is not confined to the Philippines. Even jurisdictions that did not undergo the yellow revolution or have no transparency provisions in their basic laws, have adjusted to fair criticisms.

This phenomenon is common in America, Europe, Australia and many countries in Asia-Pacific. Justice Michael Kirby has earned a worldwide reputation of being the “in-house” critic of the Australian High Court (the equivalent of our Supreme Court). Books dissecting the US Supreme Court have become bestsellers. Here are some recent ones.

“Decision” (1996) by Bernard Schwartz, a professor of law at the University of Tulsa, described by the New York Times as “one of the nation’s leading legal scholars.” This volume provides a unique behind-the-scenes look at how US justices decide cases. “Rarely do arguments of counsel—brilliant though they may appear to the courtroom audience—dictate the decision in an important Supreme Court case. Rather, the crucial arguments in a case take place privately among the justices after the public hearing.” It “gives a privileged look at how countless cases throughout the Court’s history” have been debated, voted upon and decided.

“Closed Chambers” (1998) by Edward Lazarus, a former law clerk to Justice Harry A. Blackmun and one of the 36 lawyers who assisted the nine US justices. To quote from the book itself, the author’s “riveting account shows us a Court broken into scheming factions whose members resort to crass political calculations and transparently hypocritical arguments as they discard legal principles for bottom-line results. The justices further compound this cliquish antagonism by granting excessive power to immature, ideologically driven clerks, who then use that power to manipulate their bosses and the institution they ostensibly serve.”

“Men in Black” (2005) by Mark Levin, radio journalist, editor, constitutional law expert and advisor to some Cabinet members in the Reagan government. The book is a scathing critique of the present and past US Supreme Courts and their members. It accuses them of “usurping the authority of the elected branches of government; of regularly vetoing the decisions of the elected federal and state authorities.” It attacks individual justices; for instance, it charges the brilliant Justice Felix Frankfurter of unethically leaking to executive officials “confidential information about the positions of fellow justices.”

“The Nine” (2007) by Jeffrey Toobin, a CNN senior legal analyst and New Yorker staff writer. This bestseller “tells the story of the Court through personalities—from Anthony Kennedy’s overwhelming sense of self-importance to Clarence Thomas” well-tended grievances against his critics, to David Souter’s odd 19th-century lifestyle. There is also, for the first time, the full behind-the-scenes story of Bush vs Gore—and Sandra Day O’Connor’s fateful breach with George W. Bush, the president she helped place in office.”

Other than those authored by the justices themselves (See “Res Gestae,” 2000, by Justice Isagani A. Cruz and “From the Academe to the Supreme Court,” undated, by Justice Jose C. Campos Jr.), the Philippines does not have equivalent tomes written by non-jurists. However, given the brisk sale and historical value given to similar books in the United States, some investigative journalists are at the moment writing books on our Supreme Court and its members.

The moral lesson is that the information and transparency revolution has invaded the judicial fortress. Magistrates would do well to remember that their courts are no longer sacrosanct and that their work and lifestyles are now open to constant public scrutiny.

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