Constitutional politics and the philippine supreme court: The role of public support in mitigating politicization of the judiciary

Introduction In this study, the central question being asked is: Why would a politicized court actually rule against the policy preferences of the political actors? This may appear to be an oxymoron, especially in the light of some views that constitutional politics may only do well in a democracy where courts are "independent." On the contrary, we make an assumption of a "political court," the Philippine Supreme Court, in view of its historical and institutional embeddedness in wider politics. This may also help us in re-examining our views about an "activist court" and under what conditions it assumes this behavior. But how does a court actually assert itself against the wishes or interests of political actors or render decisions that guard against affronts to constitutional norms and principles? Does the court make strategic calculations of the possible behavior of other political actors, the executive or the legislative, or does it rely on something else, including the wealth of prior jurisprudence? This chapter proposes that the public also poses a significant constraint to court behavior, and which the court also depends on for its legitimacy. Public support and legitimacy – features that have received scant attention in the study of constitutional politics – are posited as key factors in determining the ability of the Court to render decisions contrary to policy preferences. Does the public provide an adequate anchor for the Court to pursue constitutional rulemaking and thus advance the rule of law? Using the Philippine Supreme Court as a case study, this chapter seeks to illuminate these questions and to provide a framework to better understand and capture the multiplicity of drivers involved in constitutional politics and how the Court manages the interplay of various factors affecting constitutional rulemaking in the context of a democratizing state like the Philippines.