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The Anatomy of a Conservative Court: Judicial Review in Japan

Author: David S. Law, International Affairs Fellow in Japan, 2007-2008
Volume 87, Number 4, March 2009
Texas Law Review

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Abstract
The Supreme Court of Japan is widely considered the most conservative constitutional court in the world, and for good reason: in over fifty years of operation, it has struck down only eight laws on constitutional grounds. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars - including seven current and former members of the Supreme Court itself - this Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan's postwar constitution. This account of the Court's behavior also yields a number of insights into the relationship between judicial politics and electoral politics and the role of institutional design in mediating between the two.

The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the Liberal Democratic Party (LDP), Japan's center-right ruling party, has held power almost without interruption for half a century. Much of the LDP's influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself-namely, the enormously powerful Chief Justice and his aides in the Court's administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of Supreme Court law clerks, who are themselves successful career judges and exert a conservative influence on the Court.

The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Japanese Supreme Court illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensure a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the Court on an ongoing basis. Similarly, the concentration of power in the hands of a single individual who is subject to replacement at relatively frequent intervals - namely, the Chief Justice - makes unnecessary sustained and repeated efforts to influence the behavior of the Court.

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