Sovereignty of the people | Inquirer Opinion

Sovereignty of the people | Inquirer Opinion

"x x x.

Roosevelt tried to neutralize a Supreme Court whom he found to be a stumbling block by trying to pack it with people of his choice. He failed. In the end, Roosevelt had to wait until the retirement of the justices he disagreed with. It did not happen during his term. And to date divisions in the US Supreme Court continue. Count the continuing number of cases where the vote is 5-4.

I have been teaching constitutional law long enough to realize that there often are two or more possible sides to a constitutional argument. And the outcome of a constitutional debate often depends upon the modality of constitutional interpretation a justice might use. As one political writer has put it, describing the Supreme Court is like discussing the theories of Karl Marx—one has to indulge in half-truths correcting each other and exaggerations of important truths. This is because the Supreme Court is not just a court. It is also a political institution. Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties, and of our happiness, the Supreme Court, by the exercise of judicial review, wields tremendous political power.

Moreover, the composition of a Court at any given time in history is not just a product of chance. It is the result of a deliberate creation. One only has to look at the confirmation debates and what precedes them in the choice of US Supreme Court justices to see how personal, political and ideological considerations play a determinative role. It is just too bad that we see nothing as thorough in our process of choosing justices. If we did, the Court would now have a different face.

What is now referred to as the Arroyo Court took nine years in the making through a selection process heavily tilted in favor of an incumbent president. That tilted process remains, but I doubt that President Aquino will have time, within constitutional limits, to create an Aquino Court during his term. And since so much depends on the outcome of constitutional debates, what is required of him, if he wants the constitutional upper hand without resorting to bullying, is to build a strong, not necessarily loud, constitutional litigation team.
x x x."