The ‘new’ Supreme Court

The Supreme Court we see today is practically a new court in terms of composition. Only Chief Justice Diosdado Peralta is left from the appointees of President Gloria Macapagal Arroyo. He has served since the term of Chief Justice Reynato Puno and is the only one from the present court who has seen how the court has been delivering justice since then.

Next to him in the order of seniority are Justices Estela Perlas Bernabe, Marvic Leonen, and Benjamin Caguioa, all appointees of President Aquino III. They are now the senior justices. While they came later than CJ Peralta, they have all been exposed to the justices appointed by President Arroyo and are therefore practically in the same generation as CJ Peralta.

Beginning with Justice Andres Reyes, all the remaining justices are appointees of President Rodrigo Duterte. Their exposure to court leadership only dates back to the deposed Ma. Lourdes Sereno and the succession of CJs who followed her. There will soon be 11 of these Duterte-appointed justices, a very sizeable and commanding bloc if they will share the same perspectives and insights on the law, legal concerns, ethics, and decision making.

From these vantage points, the court is not only new in composition, but could also be new in ideas, ideals, and approaches. The 11 new justices, in particular, are coming in fresh, bringing with them their individual personalities, background, leanings, ethics, and persuasions; they have not seen any chief justice who has really lasted long enough to leave his/her imprint on the court and on them.

The court’s mystique, of course, has not yet faded; a opaque veil still hangs, hiding from the public the court’s operating internal dynamics and the relationships underlying and driving these dynamics. Relationships refer both to personal interactions as well as to the justices’ official ones as they perform their duties.

Justices, by the nature of their duties, have always formed a closed group. They do not freely mix socially, confining their social circles to themselves and to the limited few they have chosen to avoid undeserved suspicions of corruption or partiality.

Court watchers have always taken a keen interest in how justices socially mix with each other, within and outside the court. They have been reading these informal interactions and groupings as indicators of persuasions in law that may reflect the justices’ leanings on the legal issues before them.

To some extent, their reading is not incorrect. Social ties are driven by commonalities. Non-judicial time likewise hardly exists in the court, whether within or outside its walls; justices discuss issues and cases when they get together, whether formally or informally. Within their informal groups, they practically dwell in echo chambers of their commonly-held opinions, and reinforce each other in this way in their official functions.

Will these dynamics still be alive in the new court? These dynamics are driven by legitimate social and professional needs. Other than the ever-present possibility of abuse by an exceptional few with ulterior motives, there appears no reason to view these dynamics with suspicion.

Another informal rule in court, this time dictated by judicial ethics, is the rule on socializing with outsiders, particularly with those potentially or actually interested in cases.

In the immediate past, public eyebrows have been raised when talks veer into the topic - who have socially been seen with whom. This development could have contributed to talks in the past of grave ethical improprieties even at the level of the court.

Will these talks persist in the new court?

What officially happens within the court can only be the subject of speculation because of court rules on secrecy of official proceedings. Thus, it is not easy to know how internal court debates ran; who sided with whom in the arguments; and who are winning the unheralded skirmishes that, over time, may affect the court lives of justices.

As a rule, the general public only gets to see the products of the court’s deliberations – the ponencias, the individual opinions, and the record of voting. Beyond these, the public does not really know how arguments ran and turned, and how issues were decided.

In not a few cases in the past, this secrecy rule, unfortunately, has been breached repeatedly. Even the blow-by-blow accounts and results of internal en banc deliberations leaked out, both in whispers and as “scoops” of favored journalists. How and why these happened could only be speculated on, but they are realities pregnant with adverse implications for the whole court.

Will these still happen in the new court?

Justices – by tradition dictated by the nature of their work – are media shy. Subject to specific exceptional cases, only the chief justice or the public information officer usually appears for the court in media events. The relaxation of this tradition, however, is beginning to be seen as some justices have become less media shy.

Shall we see the day when the justices will be arguing with one another before the media?

Ultimately, the court’s handling of its cases will determine how they will be viewed and judged by the public. The public, of course, almost never openly criticize the court, but their continuing awe has not prevented them from quietly relating their experiences to friends and acquaintances. Law practitioners, in particular, exchange information with one another on matters affecting their practice.

In their quiet way, they now ask and wonder whether their past experiences and similar tales reaching them, still happen.

Will the court be awed by big business and the moneyed class? The past record is mixed, but the public will care about the present and about their future: they would want to know how the big cases affecting their immediate interests would be decided.

Will the court play politics or be politicized? In our politics-crazy country, political cases are in everyone’s sights and the curious are always around. The media – regular and social – will definitely be observant and will note if cases are getting “curiouser and curiouser,” to borrow the words of Lewis Carroll. The court should thus fortify its decisionmaking prowess to avoid suspicion and sly censure.

Much will depend on the performance of the present court membership, in particular, of the new members who have fewer ties with the court’s past, little or no overhanging adverse reputation, and who – armed with their individual skills, unique qualifications, and professional pride - can operate on even terms with everyone else in the court.

Let us watch, wait, and see the coming developments in the court’s present incarnation.