Chief Justice

Bersamin's philosophy:
Restraint in favor of
government
Bersamin says of Duterte’s announced death squad against rebel
communists: ‘I will trust the government to do its job if it believes
there is a crime being committed’

MANILA, Philippines – “I hate to disappoint you, the government is

often better in the arguments than the other side,” said newly-
appointed Chief Justice Lucas Bersamin on Wednesday, November 28,
to a reporter's question about his independence.

Rappler’s review of the 34 most high-profile en banc decisions in the

last 12 years shows Bersamin tended to favor the executive branch or
the politicians.

In the aftermath of his appointment, graphics of his voting record

flooded social media showing him voting for all of President Rodrigo
Duterte’s interest cases, including upholding martial law in Mindanao.

Bersamin would like to explain himself this way: if independence

means always voting against the government, then he hates to
disappoint.

“You know the government is represented by the Office of the Solicitor

General when it comes to issues raised in the Supreme Court. There
are also many cases where the government loses, and yet you do not
call that independence,” said Bersamin in his first press conference as
a Chief Justice.
Perhaps the two cases where the government lost on merit in his view
was former president Benigno Aquino III's Disbursement Acceleration
Program (DAP), parts of which were declared unconstitutional by the
Court in the ruling penned by Bersamin himself.

Bersamin also concurred in the decision that declared the Priority

Development Assistance Fund (PDAF) illegal. (READ: By 2022,
Supreme Court filled with Duterte appointees)

Judicial restraint

“Many will probably not believe that I do not know the President, and
he does not know me also,” said Bersamin, in his attempt to dispel
doubts about his independence that also taint the biggest promotion in
his 32-year career.

But Bersamin’s voting record is worthy of the President’s attention. He

had been vocal about his support for executive discretion, saying once
during martial law oral arguments that the 1987 Constitution does not
sufficiently address present-day threats to safety. He voted twice to
uphold Duterte’s martial law.

Asked on Wednesday what his reaction is to Duterte’s statement

about creating a death squad to target rebel communists, Bersamin
said: “Well I guess I will trust the government to do its job.”

The question was if the existence of a death squad violates the 1987
Constitution. On that, Bersamin said he cannot speculate on an issue
that has not even reached the Supreme Court yet, but in general the
chief magistrate said “death squads are a matter of perspective.”

“Maybe there was some encounter, we cannot be the judge of that,

because it’s the people on the ground who made that judgment on the
necessity for the measures taken,” said Bersamin.

“But if you believe that there is an excessive use of violence by state

agents, you can always run after them,” he added.
This philosophy is called judicial restraint. Under this concept, the
Supreme Court, a non-elective body, is advised not to supersede the
elected officials' policies, which are seen as being representative of
the will of the people who elected them.

“I am more on the side of restraint. Why? Because I happen to believe

the 3 branches should work together, and the 3 branches should
respect each other’s boundaries,” Bersamin said.

Judicial restraint, and its opposite, judicial activism, are important

continuing debates because watchdogs like to ensure that the High
Court doesn't revert to a Marcos Court, which was accused of
enabling the Marcos dictatorship and the human rights violations that
resulted from it.

“I would also like to see myself as a judicial activist in some respect,

maybe that could be in the area of environment or human rights,” said
Bersamin, who concurred in the decision to give a hero’s burial to the
late dictator Ferdinand Marcos.

He added: “But as far as issues regarding government actions are

concerned, if there is a presumption of validity in favor of the
executive action or legislative action, then I am on the side of judicial
restraint.”

Bersamin will be Chief Justice until October 2019 at a time where the
High Court is tackling major issues like the constitutionality of the war
on drugs, the Philippine withdrawal from the International Criminal
Court, and the vice presidential electoral protest between Ferdinand
"Bongbong" Marcos Jr and Vice President Leni Robredo.

Data has shown that a Chief Justice can have an effect on how other
justices in his circle vote.

Where will Bersamin take the SC?

The Chief Justice has this to say: “My voting record is there.
Sometimes I join the decision against the government, sometimes I go
in favor of the government, but in either times I am doing it in the best
light that I was given by God. So as far as the law is concerned, I was
independent.” – Rappler.com

What Is Judicial Activism?

Judicial activism describes how a judge approaches or is perceived to
approach, judicial review. The term refers to scenarios in which a judge issues a
ruling that overlooks legal precedents or past constitutional interpretations in
favor of supporting a particular political view.
Key Takeaways: Judicial Activism

 The term "judicial activism" was coined by Arthur Schlesinger, Jr. in 1947.
 Judicial activism is a ruling issued by a judge that overlooks legal
precedents or past constitutional interpretations to support a political
view.
 The term may be used to describe a judge's actual or perceived approach to
judicial review.
Coined by Arthur Schlesinger, Jr. in 1947, the term "judicial activism" carries
multiple definitions. Some argue that a judge is a judicial activist simply by
overturning a prior decision. Others counter that the primary function of the
court is to re-interpret elements of the Constitution and assess the
constitutionality of laws, and therefore such actions could not be called judicial
activism at all. As a result, the term “judicial activism” relies heavily on how
someone interprets the Constitution, as well as someone’s opinion on the role of
the Supreme Court in the separation of powers.
Origins of the Term
In a 1947 Fortune magazine article, Schlesinger organized the sitting Supreme
Court justices into two categories: proponents of judicial activism and
proponents of judicial restraint. The “judicial activists” on the bench believed that
politics play a role in every legal decision. In the voice of a judicial activist,
Schlesinger wrote:
"A wise judge knows that political choice is inevitable; he makes no false pretense
of objectivity and consciously exercises the judicial power with an eye to social
results."

According to Schlesinger, a judicial activist views the law as malleable and

believes that law is meant to do the greatest possible social good. Schlesinger
famously did not take an opinion on whether judicial activism is positive or
negative.

In the years following Schlesinger’s article, "judicial activist" was often used as a
negative term. Both sides of the political aisle used it to express outrage at rulings
that did not find in favor of their political aspirations. Judges could be accused of
“judicial activism” for even slight deviations from the accepted legal norm.

Forms of Judicial Activism

Keenan D. Kmiec chronicled the evolution of the term in a 2004 issue of
the California Law Review. According to Kmiec, charges of “judicial activism”
can be levied against a judge for a variety of reasons. A judge might have ignored
precedent, struck down a law introduced by Congress, departed from the model
another judge used for a finding in a similar case, or written a judgment with
ulterior motives to achieve a certain social goal.

The fact that judicial activism does not have a single definition makes it difficult
to point to certain cases that demonstrate a judge ruling as a judicial activist. The
amount of cases displaying acts of judicial re-interpretation broadens and
narrows depending on how “re-interpretation” is defined. However, there are a
few cases, and a few benches, that are generally agreed upon as examples of
judicial activism.

The Warren Court was the first Supreme Court bench to be called a “judicial

activist” for its decisions. While Chief Justice Earl Warren presided over the court
between 1953 and 1969, the court handed down some of the most famous legal
decisions in U.S. history, including Brown v. Board of Education, Gideon v.
Wainwright, Engel v. Vitale, and Miranda v. Arizona. The Warren Court penned
decisions that championed liberal policies that had a large impact on the country
in the 1950s and 1960s.
Examples of Judicial Activism
Brown v. Board of Education (1954) is one of the most popular examples of
judicial activism to come out of the Warren Court. Justice Warren delivered the
majority opinion, which found that segregated schools violated the Equal
Protection Clause of the Fourteenth Amendment. The ruling effectively struck
down segregation, finding that separating students by race created inherently
unequal learning environments. This is an example of judicial activism because
the ruling overturned Plessy v. Ferguson in which the Court had reasoned that
facilities could be segregated as long as they were equal.
A court does not have to overturn a case for it to be labeled activist. When a court
strikes down a law, exercising the powers given to the court system through the
separation of powers, the decision may be viewed as activist. In Lochner v. New
York (1905), Joseph Lochner, the owner of a bakeshop, sued the state of New
York for finding him in violation of the Bakeshop Act, a state law. The Act limited
bakers to working less than 60 hours per week and the state fined Lochner twice
for allowing one of his workers to spend over 60 hours in the shop. The Supreme
Court ruled that the Bakeshop Act violated the Due Process Clause of
the Fourteenth Amendment because it infringed on an individual's freedom of
contract. By invalidating a New York law and interfering with the legislature, the
Court favored an activist approach. 
Activist and liberal are not synonymous. In the 2000 presidential election,
Democratic candidate Al Gore contested the results of more than 9,000 ballots in
Florida that did not mark either Gore or Republican candidate George W. Bush.
Florida's Supreme Court issued a recount, but Dick Cheney, Bush's running mate,
called for the Supreme Court to review the recount. In Bush v. Gore, the Supreme
Court ruled that Florida's recount was unconstitutional under the Equal
Protection Clause of the 14th Amendment because the state failed to institute a
uniform procedure for the recount and handled each ballot differently. The Court
also ruled that under Article III of the Constitution, Florida did not have time to
develop a procedure for a separate, proper recount. The Court intervened in a
state decision that affected the nation, taking an activist approach, even though it
meant a conservative candidate won the 2000 presidential election.
Judicial Activism vs. Judicial Restraint
Judicial restraint is considered the antonym of judicial activism. Judges who
practice judicial restraint hand down rulings that strictly adhere to the “original
intent” of the Constitution. Their decisions also draw from stare decisis, which
means they rule based on precedents set by previous courts.
When a judge favoring judicial restraint approaches the question of whether a
law is constitutional, they tend to side with the government unless the
unconstitutionality of the law is extremely clear. Examples of cases where the
Supreme Court favored judicial restraint include Plessy v.
Ferguson and Korematsu v. United States. In Korematsu, the court upheld race-
based discrimination, refusing to interfere with legislative decisions unless they
explicitly violated the Constitution.

Procedurally, judges practice the principle of restraint by choosing not to take on

cases that require constitutional review unless absolutely necessary. Judicial
restraint urges judges to consider only cases where parties can prove that a legal
judgment is the only means of solving a dispute.

Restraint is not exclusive to politically conservative judges. Restraint was favored

by the liberals during the New Deal era because they didn’t want their progressive
legislation overturned.

Procedural Activism
Related to judicial activism, procedural activism refers to a scenario in which a
judge's ruling addresses a legal question beyond the scope of the legal matters at
hand. One of the most famous examples of procedural activism is Scott v.
Sandford. The plaintiff, Dred Scott, was a slave in Missouri who sued his master
for freedom. Scott based his claim to freedom on the fact that he had spent 10
years in a non-slave state, Illinois. Justice Roger Taney delivered the opinion on
behalf of the court. Taney wrote that the court did not have jurisdiction over
Scott’s case under Article III of the U.S. Constitution. Scott’s status as a slave
meant that he was not formally a citizen of the United States and could not sue in
federal court.
Despite ruling that the court did not have jurisdiction, Taney continued to rule on
other matters within the Dred Scott case. The majority opinion found the
Missouri Compromise itself to be unconstitutional and ruled that Congress could
not free slaves in the Northern states. Dred Scott stands as a prominent example
of procedural activism because Taney answered the principal question and then
ruled on separate, tangential matters to further his own agenda of keeping slavery
as an institution in the United States.
Sources

 Bush v. Gore, 531 U.S. 98 (2000).

 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
 "Introduction to Judicial Activism: Opposing Viewpoints." Judicial Activism, edited by
Noah Berlatsky, Greenhaven Press, 2012. Opposing Viewpoints. Opposing
Viewpoints in Context.
 "Judicial Activism." Opposing Viewpoints Online Collection, Gale, 2015. Opposing
Viewpoints in Context.
 Kmiec, Keenan D. “The Origin and Current Meanings of Judicial
Activism.” California Law Review, vol. 92, no. 5, 2004, pp. 1441–1478.,
doi:10.2307/3481421.
 Lochner v. New York, 198 U.S. 45 (1905).
 Roosevelt, Kermit. “Judicial Activism.” Encyclopædia Britannica, Encyclopædia
Britannica, Inc., 1 Oct. 2013.
 Roosevelt, Kermit. “Judicial Restraint.” Encyclopædia Britannica, Encyclopædia
Britannica, Inc., 30 Apr. 2010.
 Scott v. Sandford, 60 U.S. 393 (1856).
 Roosevelt, Kermit. The Myth of Judicial Activism: Making Sense of Supreme Court
Decisions. Yale University Press, 2008.

Judicial Restraint
byMarcus Hawkins 

Updated August 14, 2019

Judicial restraint is a legal term that describes a type of judicial interpretation

that emphasizes the limited nature of the court's power. Judicial restraint asks
judges to base their decisions solely on the concept of stare decisis, an obligation
of the court to honor previous decisions.
The Concept of Stare Decisis
This term is more commonly known as "precedent." Whether you've had
experiences in court or you've seen it on television, attorneys often fall back on
precedents in their arguments to the court. If Judge X ruled in such and such a
way in 1973, the current judge should certainly take that into consideration and
rule that way as well. The legal term stare decisis means "to stand by things
decided" in Latin. 

Judges often refer to this concept as well when they're explaining their findings,
as if to say, "You may not like this decision, but I'm not the first to reach this
conclusion." Even Supreme Court justices have been known to rely on the idea of
stare decisis. 

Of course, critics argue that just because a court has decided in a certain way in
the past, it doesn't necessarily follow that that decision was correct. Former Chief
Justice William Rehnquist once said that state decisis is not "an inexorable
command." Judges and justices are slow to ignore precedent
regardless. According to Time Magazine, William Rehnquist also held himself out
"as an apostle of judicial restraint."

The Correlation With Judicial Restraint

Judicial restraint offers very little leeway from stare decisis, and conservative
judges often employ both when deciding cases unless the law is clearly
unconstitutional. The concept of judicial restraint applies most commonly at the
Supreme Court level. This is the court that has the power to repeal or wipe out
laws that for one reason or another have not stood the test of time and are no
longer workable, fair or constitutional. These decisions all come down to each
justice's interpretation of the law and can be a matter of opinion, which is where
judicial restraint comes in. When in doubt, don't change anything. Stick with
precedents and existing interpretations. Do not strike down a law that previous
courts have upheld before. 

Judicial Restraint vs. Judicial Activism

Judicial restraint is the opposite of judicial activism in that it seeks to limit the
power of judges to create new laws or policy. Judicial activism implies that a
judge is falling back more on his personal interpretation of a law than on
precedent. He allows his own personal perceptions to bleed into his decisions. 
In most cases, the judicially restrained judge will decide a case in such a way as to
uphold the law established by Congress. Jurists who practice judicial restraint
show solemn respect for the separation of governmental problems. Strict
constructionism is one type of legal philosophy espoused by judicially restrained
judges.

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