‘Four Interpretations (Barely) Make One Footnote’: Pension Trio, Same-Sex Marriage, and the Casting of the TCC’s Reform Jurisprudence in Justice Stone

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—Ming-Sung Kuo, Associate Professor of Law, University of Warwick and Hui-Wen Chen, Research Assistant, University of Warwick

On 23 August, the Taiwan Constitutional Court (TCC) pronounced the much expected decision on the constitutionality of controversial legislation on pension reform in three Interpretations, namely, Interpretation Nos 781, 782, and 783, which we call the Pension Trio. 

As part of President TSAI Ing-Wen’s ‘New Deal’ when she was elected on a platform of reform in 2016, the impugned legislation at the centre of the Pension Trio consists of three separate statutes, each of which governs the state-underwritten pension schemes for armed forces, civil service, and teaching and non-teaching staffs of public schools, respectively.  With an eye to turning the three heavily-subsidized and diminishing state-run retirement funds into self-sufficient pension schemes, the impugned legislation in the Pension Trio was amended to cut, inter alia, pension payments to the three groups as noted above, prompting thousands of current and soon-to-be pensioners into legal dogfighting with the TCC as their last hope. 

While the TCC struck down a common clause on the ground of equal protection in the Pension Trio, it rejected petitioners’ claims that were based on the doctrine of legitimate expectation and the prohibition against retroactive legislation.  All the foundational clauses of the impugned legislation were upheld under the principle of proportionality.    

As President Tsai is heading into her re-election campaign, the TCC—by delivering the Pension Trio—not only concludes an unprecedented legal battle full of twists and turns but also gives a thumping endorsement to her signature reform.  Is the Pension Trio simply a rubber stamp to the governmental reform agenda?  Is it President Tsai’s eventual payoff for her earlier judicial appointments?  Does it tell us something about the TCC’s jurisprudence?

Bearing these questions in mind, we propose that the Pension Trio be read with another landmark decision the TCC delivered in the early stage of President Tsai’s first four-year term, namely, the widely reported Same-Sex Marriage Case (Interpretation No 748).  We suggest that read together, the four constitutive Interpretations of the Pension Trio–Same Sex Marriage Case amount to the jurisprudence of Justice Stone in US v Carolene Products Co (1938).  Paralleling the famous Footnote Four’s surfacing amidst the US debate over the legitimacy of the Supreme Court in the post-Brown constitutional politics, the TCC’s Pension Trio comes across as the missing half of the jurisprudence underlying the Same-Sex Marriage Case after the latter heralded the TCC’s Brown moment.  Before going jurisprudential, let us start with bits of law and politics.

Neither Activist nor Deferent

When read against the backdrop of the Same-Sex Marriage Case, the Pension Trio seems to suggest a U-turn in the TCC’s stance vis-à-vis the political branch under Tsai’s presidency.  As has been discussed elsewhere, the Same-Sex Marriage Case appears to be the epitome of the TCC’s judicial activism in terms of ruling and remedy under the leadership of new Chief Justice HSU Tzong-Li.  Delivered just days after the first anniversary of President Tsai’s inauguration, the Same-Sex Marriage Case soon became the lightning rod of criticism of her lacklustre reform-oriented administration from conservative groups and opposition parties.  While winning praises for its progressive values from many NGOs at home and abroad, the Same-Sex Marriage Case was considered a cause of the crushing local election losses Tsai’s ruling Democratic Progressive Party (DPP) suffered in November 2018.  As a result of two conservatives-initiated parallel referenda on the legislative bills on same-sex marriage held alongside the crucial local elections in 2018, the symbolic meaning of the Same-Sex Marriage Case was later diluted despite the passage of a special statute allowing same-sex couples to, inter alia, file for marriage registration with household registry offices.

Against this backdrop, that the Pension Trio left the impugned legislation virtually intact may suggest the TCC’s departure from its activist intervention in the public debate on reform issues such same-sex marriage.  As the winding path leading to the TCC’s eventual seisin of the matter suggested, the TCC was anything but activist in face of the contentious pension reform.  From the Same-Sex Marriage Case to the Pension Trio, the TCC seems to set itself on a retreat course. 

Yet reading the TCC through the activist-deferent prism only prevents us from looking beneath the surface.  First, the criterion for the distinction between judicial activism and deference is never clear.  Compare the Same-Sex Marriage Case and the Pension Trio.  Legally they delivered opposite results: the former declared the provision for heterosexuals-only marriage in the Civil Code unconstitutional, whereas the latter gave a constitutional greenlight to the impugned pension reform legislation.  Look beyond the legal horizon and the landscape becomes different. 

Noticeably both marriage equality and pension reform were on President Tsai’s reform agenda.  In both decisions, the TCC did anything but frustrate the political branch notwithstanding the contrasting decisions.  Can we thus infer that both the Same-Sex Marriage Case and the Pension Trio reflect judicial deference?  Not quite.  As noted above, the Pension Trio does strike down a common clause that would allow for the suspension of payments to the pension recipients who are on the payrolls of private universities or colleges and earn more than their pension payments.  It is worth noting that this so-called ‘stop fat cats clause’ had broad support from both aisles of the parliament and the society.  Thus, there is no stronger expression of judicial activism than such defiant constitutional strike.  Moreover, defying its own recent jurisprudence, the TCC invalidated the stop fat cats clause on the ground of equal protection without even granting a remedial grace period.  On the other hand, as we have argued elsewhere, the TCC’s acclaimed activism in the Same-Sex Marriage Case needs to be situated in the lead-up social mobilization.  Seen in this light, the Same-Sex Marriage Case was a result of activism indeed but not entirely out of judicial activism.  Taken together, both judicial activism and deference fail to provide a satisfactory account of the TCC’s trajectory from the Same-Sex Marriage Case to the Pension Trio.  The Pension Trio is neither activist nor deferent.        

Beyond Judicial Partisanship

Students of judicial politics may see the Pension Trio through the lens of judicial partisanship.  Simply put, to understand judicial decision-making, the judges’ party affiliation holds the key.  If the one who makes judicial appointments is politically selected  either through election or by appointment, she tends to make choices for the vacancies on the bench on political basis.  Furthermore, a judge appointed this way correspondingly tends to make political calculation in her rulings.  Judicial decisions are thus expected to reflect the political stance of the judge’s appointing political patron or the latter’s affiliated political party.  Seen in this light, the Pension Trio, rendered by President Tsai-appointed Chief Justice Hsu’s TCC, seems to manifest judicial partisanship with President Tsai and her DPP’s pension reform left virtually unscathed.  But does this still hold true when we look beyond judicial leadership and its political patronage?

Let us recall the Same-Sex Marriage Case.  As has been discussed elsewhere, President Tsai’s early judicial appointments did provide unexpected impetus for the eventual legalization of same-sex marriage.  Tsai’s seven nominees did not refrain from talking about their empathy for marriage equality for same-sex couples during their appointment hearings in the Legislative Yuan in 2016.  But could they walk the talk when they joined the eight holdovers on the bench—who were appointed by former president MA Ying-Jeou of KMT, currently the main parliamentary opposition?  The reality is that rendering an Interpretation on the constitutionality of legislation requires a supermajority.  The Same-Sex Marriage Case showed that Chief Justice Hsu’s fellow newcomers must reach out to the eight holdovers to walk the walk.  And they did.  

So does the Pension Trio.  It is true that compared to the Same-Sex Marriage Case, the Pension Trio is not even close to unanimity.  Justices being divided, the Pension Trio looks as if the TCC has swerved to the judicial style of the old days of the British House of Lords, rendering judgments seriatim.  Nevertheless, without the holdovers coming on board, the Pension Trio would not be possible.  Moreover, in Interpretation No 782, the constituent of the Pension Trio concerning the civil service pension, President Tsai’s appointee, Justice CHANG Chong-Wen, noticeably broke ranks, opining that a key provision failed to pass muster under the proportionality test.  In a nutshell, to make sense of the Pension Trio requires looking beyond judicial partisanship.

Cast in Justice Stone: Completing One Footnote with Four Interpretations?

Granted, the activism-deference distinction and judicial partisanship by no means exhaust political interpretations of the Pension Trio.  The very fact that the opposite results of the Same-Sex Marriage Case and the Pension Trio—the landmark pair under Chief Justice Hsu’s leadership—effectively remove the hurdles on President Tsai’s road to further reform warrants reading the TCC’s current jurisprudence in light of politics of reform.  But what is the jurisprudential bit of the TCC’s political jurisprudence in the era of Taiwan’s post-constitutional reform?  Again let us start with a close-up of the Same-Sex Marriage Case.

As marriage equality lay at the heart of the Same-Sex Marriage Case, the TCC had to address the standard of review under the principle of equal protection.  In line with its practice of referencing foreign legal doctrines without attribution, the TCC drew upon Justice Stone’s famous Footnote Four in Carolene Products without naming it.  Contending that ‘homosexuals…have been a discrete and insular minority in the society [and thus] unable to overturn their legally disadvantaged status through ordinary democratic processes’, the TCC adopted a ‘heightened standard’ in the Same-Sex Marriage Case (para 15).

Despite its reminiscence of Footnote Four, the Same-Sex Marriage Case gave short shrift to the rationale of Footnote Four.  For this reason, unlike its source of inspiration, the Same-Sex Marriage Case fell far short of laying down the political jurisprudence for Taiwan’s post-constitutional reform apart from the doctrinal elaboration on the standard of review.  Footnote Four was a footnote to the body text of an otherwise bland judgement, which was rendered after the Supreme Court had already made the switch in time that saved itself.  Considering such a change of tack, the Supreme Court needed a coherent jurisprudential account of its deference to the political branch at the height of the New Deal.  Thus, Footnote Four was inked to justify the general ‘presumption of constitutionality’ of ‘regulatory legislation affecting ordinary commercial transactions’ as in the impugned Filled Milk Act by carving out two noted exceptions to the foregoing rule: legislation infringing upon the Bill of Rights and other fundamental rights and discriminatory treatment based on ‘prejudice against discrete and insular minorities’.  When either of the two exceptions applies, the Supreme Court would be prepared to adopt a more searching judicial review.  Despite its jurisprudential value, Footnote Four remained just a judicial footnote until the role of the Supreme Court became a point of contention again when it intervened in civil rights and liberties in the post-Brown era.      

Apparently the TCC implicitly referred to Footnote Four in the Same-Sex Marriage Case without (re)considering its role in the protection of constitutional rights in the new era when political conflicts are likely to be fought out around the limits of rights.  Failing to appreciate such new challenges, the TCC has entered its Brown moment with its landmark Same-Sex Marriage Case and continued to play with its old doctrinal toolkit— the standard/ intensity of review in politically charged cases.  It continued to do so with the Pension Trio.  Under the guise of rationality review, the Pension Trio effectively presumed the constitutionality of the reform legislation.  Pension cut is permissible not only for the overall government financial health but also for ‘the reasonable (re)allocation of state financial resources’ (Interpretation No 781, para 55).  As resources reallocation is the keynote of the reform, the Pension Trio’s jurisprudential justification of the impugned legislation turns out to be the unarticulated presupposition of Footnote Four: regulatory legislation affecting ordinary commercial transactions—which is the mainstay of the New Deal-entailed legislation—is entitled to the presumption of proportionality.  Read together, the Pension Trio and the Same-Sex Marriage Case provide the TCC with a tangled justification for its contested role in the new era of reform, a function expected of Footnote Four when it was added to the Supreme Court’s New Deal jurisprudence.  In sum, the four constitutive Interpretations of the Pension Trio-Same Sex Marriage Case jointly contribute to the casting of the TCC’s reform jurisprudence in the terms Justice Stone laid down in Carolene Products and Footnote Four therein.

Concluding Thoughts

 While the contrasting Pension Trio and the Same-Sex Marriage Case seem to find reconciliation through jurisprudence, jurisprudence alone has not kept the TCC from political challenges.  This should come as no surprise when we take account of their source of inspiration.  As it turned out, neither Carolene Products nor Footnote Four itself succeeded in putting the legitimacy of the US Supreme Court beyond question.  As the four constitutive Interpretations of the Pension Trio-Same Sex Marriage Case barely provide a jurisprudential account of the TCC’s role amidst the waves of reform as Footnote Four did in the New Deal, the TCC should anticipate more challenges when its authority on the protection of rights is no longer self-explanatory.

Suggested Citation: Ming-Sung Kuo and Hui-Wen Chen, ‘Four Interpretations (Barely) Make One Footnote’: Pension Trio, Same-Sex Marriage, and the Casting of the TCC’s Reform Jurisprudence in Justice Stone, Int’l J. Const. L. Blog, Aug. 27, 2019, at: http://www.iconnectblog.com/2019/08/‘four-interpretations-(barely)-make-one-footnote’:-pension-trio,-same-sex-marriage,-and-the-casting-of-the-tcc’s-reform-jurisprudence-in-justice-stone