VI.

PERSPECTIVES ON THE JUDICIAL FUNCTION

A. Stephen G. Breyer, Judicical Review: A Practising Judges Perspective
a. Judicial interpretations of the Constitution have binding legal force,
not subject to legislative override.
b. Democratic Anomaly- a matter central to how citizens, constitutional
scholars, and judges think about constitutional decision making and
which appears frequently as the subject of public and academic
constitutional debate.
c. Any actual democracy contains many non-majoritarian institutions and
procedures.
d. 5 PARTS OF REALISTIC APPRAISAL OF SUBJECTIVITY
i. First, judges of a constitutional court find constraints in the
rules, canons, principles, and institutional understandings of
the judicial enterprise itself.
ii. Second, experience both teaches and constrains its
practitioners.
iii. Third, that effort, leads one to see the Constitution as a
framework- a concept that plays as a central role in our
Constitutional decision-making.
iv. Fourth, need for each decision to fit within what one might call
the legal fabric, a fabric that itself tied, through purpose and
through consequence, to actual human behaviour.
v. Fifth, constraints arise out of the judges own need for
personal consistency over time.
e. Problem of the ivory tower- illustrates both the need for, and the
difficulty of, taking account of practical administrative concerns in
constitutional decision-making.
f. 3 Categories of Government Activity
i. Strict Scrutiny the Court will presume a constitutional
violation unless the government can justify its action as
necessary to serve a compelling interest that cannot be
achieved in less restrictive ways.
ii. Intermediate Scrutiny- the court seeks justification in terms
of an important interest.
iii. Rational Basis the Court presumes the law valid unless it could
not be seen as nationally connected to some permissible
government interest.

B. Florentino P. Feliciano, The Application of Law: Some Recurring Aspects
of the Process of Judicial Review and Decision-Making
a. Most important task of the judge
i. To become very clear as to what community values or
interests are engaged
ii. Must draw upon the wisdom of the past and examine the
previous applications of the potentially applicable precedent.
iii. Must seek to anticipate and estimate possible future
consequences upon the community of each alternative in
decision that he sees open to him.
iv. Must seek to design a decision, with an appropriate mode of
explication.
b. The first task of the judge is the only one that needs an
elaboration.
c. In our own jurisdiction, the judges task of gleaning the
requirements of community values from applicable and related
prescriptions, is lightened in some measure by the Declaration of
Basic Principle and State Policies.
d. Rationality of Judicial Process- understood as an ends-means
relationship between particular applications of law and widely
shared or community interests rather than the private and
arbitrary preferences of the judge.
e. Conventional Morality- Standards of conduct which are widely
shared in a particular society and which embrace both moral
principles and moral ideals.
f. Two-Fold Criticism
i. There appears no scientific and generally accepted scale
for translating the value of interests into a common
currency for comparison.
ii. Balancing is undermining our usual understanding of
constitutional law as a interpretative enterprise.
C. Vicente V. Mendoza, The Protection of Liberties and Citizens Rights:
The Role of the Philippine Supreme Court
a. Judicial Review
i. The power of courts to determine the constitutional validity
of the acts of other departments of government, as a means
of protecting individual rights.
ii. In the Philippines, the legitimacy of judicial review has
never been in question.
b. Case and Controversy Requirement
i. The political question doctrine and the principle of
standing, together with questions of prematurity and
mootness, constitute the elements of justiciability.
c. Essence of Civil Liberties
i. The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the
laws, whenever he receives injury.
d. Standards of Review
i. The court has adopted a double standard of review- one
which treats regulations dealing with property or
property rights deferentially but subjects to those
dealing with freedom of the mind to strict and searching
scrutiny.
ii. Public officials, cannot sue for criticisms of official
conduct as long as the critic proves the truth of his
charge.
iii. The court has elevated the standard of proof beyond
reasonable doubt to the status of a constitutional
requirement for the prosecution to meet in view of the
constitutional presumption of innocence.
iv. The court has construed the term property in the Due
Process Clause to include not only material[possessions
but also the right to ones job whether in public or
private employment.