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The Anatomy of a Conservative Court: Judicial Review in Japan

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The Supreme Court of Japan is widely and justifiably considered the most conservative constitutional court in the world. 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 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 political environment dominated almost continuously by the center-right Liberal Democratic Party (LDP). Much of the government’s influence over the Court has been 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. In effect, the government has delegated 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 the Court’s law clerks, who are themselves elite career judges with both the ability and the inclination to oppose any liberal escapades on the part of the justices. 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 Supreme Court of Japan 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, paired with a deliberate strategy of appointing justices close to mandatory retirement age, ensures 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 — obviates sustained and repeated efforts by the government to influence the direction of the Court.
The Anatomy of a Conservative Court:
Judicial Review in Japan
David S. Law*
The Supreme Court of Japan is widely and justifiably considered the most
conservative constitutional court in the world. 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 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 center–right
Liberal Democratic Party (LDP) 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
* Professor of Law and Professor of Political Science, Washington University in St. Louis.
This Article is a substantially abridged version of an Article presented at the Texas Law Review
symposium entitled “What, If Anything, Do We Know About Constitutional Design?” and at the
2009 comparative constitutional law roundtable held at the George Washington University Law
School. The present version was presented at the 2009 annual meeting of the Law and Society
Association in Denver. The underlying research and interviews were conducted during my three-
month stay as a visiting associate professor at the Keio University Faculty of Law, with the
generous financial support of an International Affairs Fellowship in Japan awarded by the Council
on Foreign Relations and sponsored by the Hitachi Corporation. This Article and the research on
which it is based would not have been possible without the extraordinary generosity and assistance
of countless individuals in Japan, particularly my interviewees, many of whom cannot be named
here for reasons of confidentiality. Those who can be named include former judges Haruhiko Abe
and Yasuaki Miyamoto, and a number of scholars: Dan Foote, Stephen Givens, Yasuo Hasebe,
Hiroshi Itoh, Colin Jones, Masako Kamiya, Shigenori Matsui, Setsuo Miyazawa, Shinichi
Nishikawa, Yoshitomo Ode, Hideyuki Ohsawa, Larry Repeta, Takao Tanase, Hidenori Tomatsu,
and Matt Wilson. Carl Green and Jiro Tamura kindly arranged my appointment at Keio University,
while Jerry McAlinn helped to ensure that the appointment was a productive one. Shigenori
Matsui, Setsuo Miyazawa, and two anonymous retired justices were instrumental in arranging key
interviews. Norimitsu Shirai and Mizuna Sekine served brilliantly not only as research assistants
and translators but also as guides to Japanese society. Kyosuke Takemura provided superlative help
with Japanese-language research, translation, and data collection. Daphne Barak-Erez, Eric
Feldman, Tom Ginsburg, John Haley, Lisa Hilbink, Dan Ho, Masako Kamiya, Ron Krotoszynski,
Sandy Levinson, Clark Lombardi, H.W. Perry, and two anonymous Japanese district court judges
provided helpful comments on early drafts. Last but not least, I wish to thank Sandy Levinson for
the opportunity to participate in this symposium and the editors of the Texas Law Review for their
tireless efforts.
1546 Texas Law Review [Vol. 87:1545
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 the Court’s law clerks, who are themselves elite career
judges with both the ability and the inclination to oppose any liberal escapades
on the part of the justices.
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 composi-
tion 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 Supreme Court of
Japan 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, ensures 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—obviates sustained and repeated efforts by the
government to influence the direction of the Court.
I. Introduction
The Supreme Court of Japan (SCJ) has been described as the most
conservative constitutional court in the world, and for good reason.1 One
might characterize it as “conservative” in the sense of being so passive or
cautious that it almost never challenges the government.2 Alternatively, or in
1. See, e.g., DAVID M. BEATTY, CONSTITUTIONAL LAW IN THEORY AND PRACTICE 121 (1995)
(“Among comparativists, constitutional review in Japan is regarded as the most conservative and
cautious in the world.”).
2. See, e.g., RONALD J. KROTOSZYNSKI, JR., THE FIRST AMENDMENT IN CROSS-CULTURAL
PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH 144, 143–45
(2006) (attributing the Court’s unwillingness to strike down legislation to “the Court’s view of its
proper institutional role” and a “lack of comfort with interposing the judiciary’s will over that of
elected officials”); John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and
the Public Trust, in LAW IN JAPAN: A TURNING POINT 99, 99 (Daniel H. Foote ed., 2007); Noriho
Urabe, Rule of Law and Due Process: A Comparative View of the United States and Japan, in
JAPANESE CONSTITUTIONAL LAW 173, 182 (Percy R. Luney, Jr. & Kazuyuki Takahashi eds., 1993)
(condemning the Japanese Supreme Court as “a court so subdued as to deprive judicial review of all
its significance”).
2009] The Anatomy of a Conservative Court 1547
addition, one might characterize it as “conservative” in the sense that it
happens to share the ideological views and preferences of Japan’s long-ruling
conservative party, the Liberal Democratic Party (LDP).3 What is clear,
however, is that the label fits.
Since its creation in 1947, the court known in Japanese as the Saikō
Saibansho has struck down only eight statutes on constitutional grounds.4
By way of comparison, Germany’s constitutional court, which was estab-
lished several years later, has struck down over 600 laws.5 The majority of
the Japanese Supreme Court’s rulings of unconstitutionality have, moreover,
been less than momentous. Among the rare and often obscure legislative
provisions that the Court has struck down are a law punishing patricide more
severely than other forms of homicide, 6 a law restricting the ability of
pharmacies to operate within close physical proximity of one another,7 a rule
limiting the liability of the postal service for the loss of registered mail,8 a
law restricting the ability of co-owners of forest land to subdivide their
property,9 and, most recently, a statutory provision that distinguished for
purposes of citizenship eligibility between illegitimate children of Japanese
fathers who acknowledged paternity prior to birth and those whose fathers
acknowledged paternity only subsequent to birth.10 The high point of over
fifty years of judicial review in Japan is probably a 1976 decision rejecting a
legislative apportionment scheme that weighted the votes of rural voters five
times as heavily as those of urban voters, yet the Court refrained in that case
3. J. MARK RAMSEYER & ERIC B. RASMUSEN, MEASURING JUDICIAL INDEPENDENCE: THE
POLITICAL ECONOMY OF JUDGING IN JAPAN 9–10 (2003) [hereinafter RAMSEYER & RASMUSEN,
MEASURING JUDICIAL INDEPENDENCE]; J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH,
JAPANS POLITICAL MARKETPLACE 178–79 (rev. ed. 1997); see also Percy R. Luney, Jr., The
Judiciary: Its Organization and Status in the Parliamentary System, in JAPANESE CONSTITUTIONAL
LAW, supra note 2, at 123, 145 (arguing that the justices, having been appointed by the leadership
of the LDP, tend to “reflect the social, economic, cultural, and political values of the party
membership”). The LDP has governed Japan for nearly all of the last fifty years. It briefly lost
power for an eight-month period beginning in August 1993, after which time it returned to power in
a short-lived coalition with the Socialist Party. GERALD CURTIS, THE LOGIC OF JAPANESE
POLITICS: LEADERS, INSTITUTIONS, AND THE LIMITS OF CHANGE 69, 188–93 (1999); J. Mark
Ramseyer & Eric B. Rasmusen, The Case for Managed Judges: Learning from Japan After the
Political Upheaval of 1993, 154 U. PA. L. REV. 1879, 1892–93 (2006) [hereinafter Ramseyer &
Rasmusen, Managed Judges].
4. See Jun-ichi Satoh, Judicial Review in Japan: An Overview of the Case Law and an
Examination of Trends in the Japanese Supreme Court’s Constitutional Oversight, 41 LOY. L.A. L.
REV. 603, 609 (2008) (noting that the Japanese Supreme Court has exercised the power of judicial
review on only eight occasions).
5. See Judgment Days: Germany’s Constitutional Court, ECONOMIST, Mar. 28, 2009, at 59
(reporting that, since its creation in 1951, the German Bundesverfassungsgericht has struck down
611 laws).
6. Aizawa v. Japan, 27 KEISHŪ 265 (Sup. Ct., Apr. 4, 1973).
7. Sumiyoshi K.K. v. Governor, Hiroshima-ken, 29 MINSHŪ 572 (Sup. Ct., Apr. 30, 1975).
8. Shichifuku Sangyō K.K. v. Japan, 56 MINSHŪ 1439 (Sup. Ct., Sept. 11, 2002).
9. Hiraguchi v. Hiraguchi, 41 MINSHŪ 408 (Sup. Ct., Apr. 22, 1987).
10. Jane Doe v. Japan, 62 MINSHŪ 1367 (Sup. Ct., June 4, 2008).
1548 Texas Law Review [Vol. 87:1545
from ordering any remedy.11 And on the constitutional question that is per-
haps of greatest importance to the LDP, the SCJ has simply refused to act: it
has steadfastly avoided ruling upon the merits of constitutional challenges to
Japan’s military activities and security arrangements under Article 9 of the
Kenpō, the postwar constitution, which explicitly prohibits the maintenance
of armed forces or other “war potential.”12
Why is the SCJ so conservative? Drawing on interviews conducted in
Japan with a variety of judges, officials, and scholars—including seven
current and former members of the Japanese Supreme Court itself13—this
Article offers an in-depth account of why the Court has failed to take an ac-
tive role in enforcement of the postwar constitution. It describes the formal
and informal institutions and practices that have stacked the deck heavily
against liberal constitutional decision making by the SCJ. These include the
education, recruitment, and promotion of Japan’s career judges; the screening
and selection of Supreme Court justices; the resource limitations and practi-
cal constraints faced by a sitting justice; and the influence of the Chief
Justice and select administrators within the judiciary over the behavior of the
lower courts and the composition of the SCJ.
What these institutional structures have created, however, is not a
judiciary that is necessarily or inherently conservative in ideology or
11. Kurokawa v. Chiba Prefecture Election Control Comm’n, 30 MINSHŪ 223 (Sup.
Ct., Apr. 14, 1976); Shigenori Matsui, The Reapportionment Cases in Japan: Constitutional Law,
Politics, and the Japanese Supreme Court, 33 OSAKA U. L. REV. 17, 30–36, 41–42 (1986). The
Japanese Diet has repeatedly failed to keep malapportionment of the House of Representatives
within the limits set forth in Kurokawa. The SCJ has responded by ruling repeatedly that the
apportionment scheme remains unconstitutional, but it has consistently declined to order a remedy.
See William Somers Bailey, Reducing Malapportionment in Japan’s Electoral Districts: The
Supreme Court Must Act, 6 PAC. RIM L. & POLY J. 169, 178–81, 184 (1997) (discussing both the
Court’s malapportionment decisions subsequent to Kurokawa, including Kanao v. Hiroshima
Election Mgmt. Comm’n, 39 MINSHŪ 1100 (Sup. Ct., July 17, 1985), and the ongoing inadequacy
of the Diet’s response); Matsui, supra, at 40, 34–35 (noting the “deep frustration” of many judges
and commentators at the “continued failure of the Diet” to comply with the Court’s legislative
apportionment rulings).
12. See KENPŌ [Constitution] art. 9 (“[L]and, sea, and air forces, as well as other war potential,
will never be maintained.”); John O. Haley, Waging War: Japan’s Constitutional Constraints,
CONST. F., 2005 (Issue 2), at 18, 24–27; Richard J. Samuels, Politics, Security Policy, and Japan’s
Cabinet Legislation Bureau: Who Elected These Guys, Anyway? text accompanying nn.15–17
(Japan Policy Research Inst., Working Paper No. 99, 2004), available at http://www.jpri.org/
publications/workingpapers/wp99.html (both describing the Court’s use of the political question
doctrine to render cases involving Article 9 nonjusticiable); see also id. at text accompanying n.15
(noting that “no portion of the Constitution has been more hotly contested” than Article 9 and that
“no issue has been more ‘political’ than the constitutionality of the Self-Defense Forces”).
13. In addition to the seven justices, I also interviewed two of the Supreme Court’s law clerks
(who, as discussed below, are themselves successful career judges on temporary assignment to the
Supreme Court, see infra subpart III(C); five other current and former judges, including Yasuaki
Miyamoto and Haruhiko Abe, both known for their membership in the organization known as
Seihōkyō (which is discussed below, see infra notes 79–92 and accompanying text); a prosecutor;
and a variety of Japanese academics as acknowledged in the star footnote. For various compelling
reasons, many of the interviewees must remain anonymous.
2009] The Anatomy of a Conservative Court 1549
disposition but rather one that is highly responsive to the sensibilities of its
internal leadership and capable of adapting quickly to a change in said
leadership. In practice, the judiciary is run by a cadre of elite senior judges
who hold key administrative posts, including that of Chief Justice, and wield
an impressive array of powers that enable them to enforce their preferred
views throughout the institution and over time. The bureaucratic mecha-
nisms at their disposal for achieving uniformity and continuity have, over
time, faithfully translated conservative political rule into conservative
judicial behavior. Yet Japan’s nearly unbroken postwar history of one-party
conservative rule has obscured the judiciary’s latent institutional capacity for
a relatively rapid shift in ideological course. The concentration of power in
the hands of a select few judges means that a change in leadership can have a
rapid and profound impact on the behavior of the entire judiciary.
Parts II and III of this Article discuss the two basic reasons why the
Japanese Supreme Court is so conservative. The first, per Part II, is that it is
difficult for someone who is truly liberal to be appointed to the Court. The
second, per Part III, is that it is difficult for someone who is already on the
Court to behave in a truly liberal way. The reasons for the Court’s
conservatism, it will be argued, are both political and institutional in nature.
The Conclusion draws several lessons from the Japanese experience about
the relationship between judicial politics and electoral politics, and the
mediating role of institutional structure. It is impossible to wholly insulate a
court from the influence of its political environment. Institutional design
can, however, reconcile the formal requirements of judicial independence
with the practical necessity of political responsiveness. In Japan, there exists
a sophisticated apparatus for ensuring that the judiciary remains in sync with
the wishes of the government. This apparatus is to be found not in the
government, however, but within the judiciary itself. The result is a judiciary
that combines a high degree of judicial independence, in the form of bureau-
cratic autonomy, with a high level of sensitivity to the wishes of relevant
political actors.
II. The Screening of Japanese Supreme Court Justices
A. The Secretive Appointment Process
Imagine a left-leaning law student who dreams of changing the world.
He dreams of upholding and advancing the causes of justice, equality, the
rights of the individual, constitutionalism, and the nation’s commitment to
peace and democracy. Let us call him Hidari, and let us suppose further that
he is the rare and extraordinary individual who possesses both the raw desire
and intellectual ability to reshape Japanese constitutional law. There are two
ways in which Hidari might attempt to steer the SCJ in a more active and
liberal direction. The first would be to reach the Supreme Court himself, to
vote in a liberal direction, and to influence his colleagues to do likewise. The
second would be to influence the selection of Supreme Court justices. These
1550 Texas Law Review [Vol. 87:1545
two approaches are by no means mutually exclusive: if he can attain the posi-
tion of Chief Justice, he will enjoy influence over both the behavior and the
composition of the Court.
The scope of the Chief Justice’s influence over the appointment of
justices—and, indeed, the entire appointment process—is shrouded in a good
deal of obscurity and secrecy.14 The truth lies buried beneath several layers
of tatemae, or superficial appearance, that must be peeled back one after
another, like the skin of an onion. As a formal matter, the Kenpō provides
that the Emperor is to appoint the Chief Justice “as designated by the
Cabinet,”15 while the power to appoint the other members of the Court is
vested directly in the Cabinet,16 which in a parliamentary system is shorthand
for the Prime Minister. In practice, however, not only is the Emperor’s role a
strictly formal one, but the Prime Minister’s role is not always as extensive
as the bare text of the Kenpō would suggest. For each vacancy that arises on
the Court, the Chief Justice submits to the Prime Minister a list of candidates
containing from one to three names.17 No Prime Minister in recent memory
is known to have rejected the Chief Justice’s recommendations outright.18
It is tempting to infer from this fact, as some scholars have done, that
the selection of Supreme Court justices is in reality left to the judiciary
itself.19 But the Chief Justice’s role, no less than those of the Emperor and
Prime Minister, also entails a degree of tatemae. First, as discussed further
below, the Chief Justice has little or no say in how certain seats on the Court
are to be filled.20 Second, the Chief Justice’s recommendations to the Prime
Minister are merely the last stage of a process in which potential nominees
14. See HIROSHI ITOH, THE JAPANESE SUPREME COURT: CONSTITUTIONAL POLICIES 24 (1989)
(observing that “the process of nominating and appointing justices . . . remains unclear, [but] it
appears that a Prime Minister and a handful of advisors, including an incumbent Chief Justice of the
Court, are directly responsible for the selection of final candidates”); Interview with Justice G,
Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed)
(indicating that the Secretary General’s input “plays a role”).
15. KENPŌ art. 6, para. 2.
16. Id. art. 79, para. 1.
17. See Haley, supra note 2, at 107; David M. O’Brien & Yasuo Ohkoshi, Stifling Judicial
Independence from Within: The Japanese Judiciary, in J
UDICIAL INDEPENDENCE IN THE AGE OF
DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 37, 51 (Peter H. Russell &
David M. O’Brien eds., 2001) (both describing the role of retiring chief justices in choosing their
replacements); see also Interview with Justice A, Current or Former Member of the Supreme Court
of Japan, in Tokyo, Japan (Date Concealed) (indicating that the Chief Justice submits two or three
names to the Prime Minister); Interview with Justice B, Current or Former Member of the Supreme
Court of Japan, in Tokyo, Japan (Date Concealed) (indicating that the Chief Justice submits one or
two names); Interview with Justice G, supra note 14 (indicating that the Chief Justice submits
“several” names).
18. According to one of the justices I interviewed, the Cabinet (meaning the Prime Minister)
did on occasion reject the Chief Justice’s recommendations in the years immediately following
World War II, but such rejections no longer occur. Interview with Justice A, supra note 17.
19. See Haley, supra note 2, at 100 (reaching precisely this conclusion); O’Brien & Okhoshi,
supra note 17, at 46 (same).
20. See infra subpart II(D).
2009] The Anatomy of a Conservative Court 1551
have already been vetted by the Prime Minister’s office before the Chief
Justice makes his recommendations. My research revealed that the Cabinet
Secretary, or Kanbōchōkan, engages in “negotiations” over potential candi-
dates with the Secretary General, or Jimusocho, who is appointed by and
works closely with the Chief Justice.21 The Secretary General heads the
General Secretariat of the Supreme Court, or Jimusōkyoku, which is the
exceptionally powerful administrative arm of the judiciary.22 Only after
these key aides to the Prime Minister and Chief Justice have already arrived
at a mutually satisfactory conclusion does the Chief Justice convey his (pre-
approved) recommendations to the Prime Minister. 23 Thus, the Prime
Minister, acting through the Cabinet Secretary, has ample opportunity to
informally veto any nominee whom the Chief Justice might recommend be-
fore the Chief Justice even speaks to the Prime Minister.
Even if he does not wield unchecked power, however, it is clear that the
Chief Justice enjoys considerable influence, both direct and indirect, over the
appointment and promotion of judges in general and the selection of
Supreme Court justices in particular. Accordingly, because Hidari wishes to
maximize his influence over the direction of the SCJ, he will want to set his
sights upon becoming not simply a member of the SCJ, but its titular head.
But it will not take long for him to discover that, for an idealistic young law
student with dreams of becoming Japan’s answer to Earl Warren or William
Brennan, the path to the SCJ is strewn with a fantastic array of obstacles that
have proven all but insurmountable for over half a century.
B. The Initial Judicial Hiring Process
If Hidari wishes to maximize his chances of reaching the Supreme
Court, and indeed of becoming Chief Justice, he will want to consider a
career in the judiciary, and he will want to start young. As will be discussed
below, the fifteen seats on the Court are allocated on the basis of informal
quotas to different segments of the legal community and bureaucracy.24 The
largest allocation belongs to the judiciary: six of the Court’s members are
career judges, and the Chief Justice, in particular, has almost invariably risen
to the post through the ranks of the career judiciary.25 Moreover, elevation to
21. Interview with Justice G, supra note 14.
22. See ITOH, supra note 14, at 251–52; Masaki Abe, The Internal Control of a Bureaucratic
Judiciary: The Case of Japan, 23 INTL J. SOC . L. 303, 311–12 (1995); Setsuo Miyazawa,
Administrative Control of Japanese Judges, 25 KOBE U. L. REV. 45, 48 (1991) (all discussing the
leadership structure and organization of the General Secretariat); infra subparts II(B)–(C)
(discussing the power of the General Secretariat over the training, hiring, promotion, and
assignment of judges).
23. Interview with Justice G, supra note 14.
24. See infra notes 138–43 and accompanying text.
25. See D
AVID M. O’BRIEN WITH YASUO OHKOSHI, TO DREAM OF DREAMS: RELIGIOUS
FREEDOM AND CONSTITUTIONAL POLITICS IN POSTWAR JAPAN 77 (1996) (noting that every Chief
Justice in the 1980s and 1990s rose through the ranks of the judiciary and, in particular, the General
1552 Texas Law Review [Vol. 87:1545
Japan’s highest court, should it happen, is the culmination of a successful
lifelong career in the judiciary that occurs with precious few years to spare
before mandatory retirement age.26 Hidari’s first step, therefore, should be to
join the judiciary as soon as he can.
To do so, he must first study law and pass the bar exam. In the past,
Hidari would not have been required to attend law school in order to pursue
his ambitions of becoming a judge. After obtaining an undergraduate
degree—probably, but not necessarily, in law—he would have proceeded to
take the bar exam, which in Japan has historically had a staggeringly low
passage rate of two to three percent.27 Had he found himself among the
gifted few capable of surmounting that obstacle, he would then have been
required to attend two years of training at the Shiho Kensyujo, or Legal
Training and Research Institute (LTRI), which is operated by the judiciary at
government expense.28 Law schools in the form of graduate professional
schools were only introduced in 2004, and the length of mandatory LTRI
training has since been curtailed to one year.29 What has not changed,
however, is the basic requirement that everyone who has passed the bar and
wishes to practice law—whether as a private attorney, a prosecutor, or a
judge—must undergo training at the LTRI.30
The “systematic purge” of ideologically unsuitable judges, as one
observer aptly describes it, begins with the first day of LTRI training.31 Each
LTRI class has five instructors, one each in the areas of civil adjudication,
Secretariat); Haley, supra note 2, at 107 (noting that all but four of Japan’s chief justices have been
career judges); Miyazawa, supra note 22, at 47 (deeming it an “established custom” for five or six
justices to be selected from the career judiciary, the Chief Justice among them); Ramseyer &
Rasmusen, Managed Judges, supra note 3, at 1884, 1883–84 tbl.2 (listing the professional
background of every appointee to the Court from 1983 through 2005 and noting that, since 1973,
every Chief Justice has been a former lower-court judge).
26. By statute, lower-court judges must retire at age sixty-five and members of the SCJ at age
seventy. Saibansho ho [Court Act], Law No. 59 of 1947, art. 50, translated in 2 EHS LAW BULL.
SER. no. 2010 (2005); see also infra subpart III(A) (discussing the deliberate appointment of
justices near retirement age).
27. See Setsuo Miyazawa, Law Reform, Lawyers, and Access to Justice, in JAPANESE BUSINESS
LAW 39, 46 (Gerald Paul McAlinn ed., 2007) (discussing the low Japanese bar-passage rate prior to
1990).
28. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 8; Abe,
supra note 22, at 306.
29. The reduced one-year training period applies to graduates of the newly created law schools.
Others must attend an additional four to six months of classroom training at the LTRI. E-mail from
Setsuo Miyazawa, Professor, Aoyama Gakuin Law School, to David Law, Professor, Washington
University in St. Louis (Mar. 1, 2009, 14:29:30 CST) (on file with author); E-mail from Norimitsu
Shirai, 2008 Keio Law School Graduate, to David S. Law, Professor, Washington University in
St. Louis (Mar. 1, 2009, 19:57:39 CST) (on file with author).
30. Supreme Court of Japan, The Legal Training and Research Institute of Japan, http://www.
courts.go.jp/english/institute/institute.html.
31. Interview with Lawrence Repeta, Professor, Omiya Law School, in Tokyo, Japan (July 4,
2008).
2009] The Anatomy of a Conservative Court 1553
criminal adjudication, prosecution, civil advocacy, and criminal defense.32
The civil adjudication and criminal adjudication instructors are selected by
the General Secretariat from the ranks of the career judiciary, and by all
accounts, the General Secretariat takes care to select jurists who are both
capable teachers and experts in their fields.33 Service as an LTRI instructor
is an elite credential on a judge’s résumé; indeed, it is common for former
judges on the Supreme Court to have spent time teaching at the LTRI.34
These instructors perform crucial functions apart from teaching, however,
that require the General Secretariat to pay close attention not only to their
legal expertise and classroom abilities, but also to their ideological
soundness, diplomatic skills, and powers of observation.
One function that they perform, it has been suggested, is indoctrination.
Setsuo Miyazawa characterizes the LTRI adjudication instructors as
“carefully selected mainstream judges who teach only orthodox legal
doctrines and practice skills acceptable to them.”35 The judiciary’s pref-
erence for hiring younger judges immediately after training is, argues
Miyazawa, no mere coincidence: the indoctrination of judges at an
impressionable young age, combined with the various mechanisms available
to the judiciary for controlling the behavior of those already on the bench,
explains the extreme “passivity of most judges in Japan.”36 Whether LTRI
instruction amounts not merely to education but also to indoctrination, lies to
a considerable extent in the eye of the beholder. Miyazawa is surely correct,
however, that it would be surprising if the General Secretariat were to select
instructors who did not reflect and embody its own conservative sensibilities.
Another sensitive function that the LTRI adjudication instructors
perform is the screening and recruitment of new judges. Several justices
with experience in personnel matters observed that the recruitment of
suitable candidates in adequate numbers is a pressing challenge, and that
mandatory LTRI training gives the judiciary a prime opportunity to recruit by
showcasing its talent.37 When asked why they chose to join the judiciary,
32. Interview with Judge 5, in Location Concealed (Date Concealed); Supreme Court of Japan,
supra note 30.
33. See Setsuo Miyazawa, The Politics of Judicial Reform in Japan: The Rule of Law at Last?,
ASIAN-PAC. L. & POLY J. (SPECIAL ISSUE), Spring 2001, at 89, 112 (noting the careful selection of
judges to be LTRI instructors); Interview with Judge 4, in Location Concealed (Date Concealed).
The selection of LTRI instructors is formally the responsibility of the justices’ conference, or
saibankan kaigi, but is performed in practice by the General Secretariat. Abe, supra note 22, at
306; see also infra notes 107, 278 and accompanying text (noting the discrepancy between the
formal powers and the actual work of the saibankan kaigi).
34. Miyazawa, supra note 22, at 112.
35. Id.; see also Interview with Judge 5, supra note 32 (confirming the existence of the hiring
preferences for younger judges).
36. Miyazawa, supra note 22, at 112.
37. Interview with Judge 3, in Location Concealed (Date Concealed); Interview with Judge 4,
supra note 33; Interview with Judge 5, supra note 32; see also Toshihiro Kanatani, Yonjū-go
Nenkan no Saibankan Seikatsu wo Furikaette [Forty-five Years of Judge’s Work in Retrospect], 45
KINKI U. L. REV. 101, 108 (2006) (noting autobiographically that the example set by the author’s
1554 Texas Law Review [Vol. 87:1545
several of the judges I interviewed mentioned specifically that they were
favorably impressed by the judges who taught them at the LTRI.38 But the
judiciary is, of course, selective in its recruitment efforts. The fact that the
judiciary hires a high proportion of those LTRI graduates who formally apply
for assistant judgeships does not reflect a willingness to take all comers.
Rather, it falls upon the LTRI adjudication instructors to identify those who
are suitable for judgeships and to dissuade those who are unsuitable from
even applying for a position. These instructors are responsible for preparing
secret evaluations of all trainees and thus must observe the entire class
closely from the outset.39
The judiciary’s reliance upon the information-gathering, recruitment,
and screening functions of its instructors at the LTRI is born partly of
necessity: because judges are hired directly out of the LTRI rather than on
the basis of past professional accomplishment, it is both necessary and wise
for the judiciary to rely upon the information that it gathers from a
candidate’s performance at the LTRI under the watchful eye of its own
judges.40 By no means, however, are these instructors focused upon raw le-
gal talent alone. One justice with extensive experience as an LTRI instructor
and in judicial personnel matters emphasized that the LTRI instructors are on
the lookout for candidates with the right “temperament,” “balance,” and
sense of “fairness.”41 Those who do not possess such qualities may have
lofty test scores, but they are encouraged, subtly or otherwise, to pursue ca-
reers as lawyers or prosecutors instead.42 In the words of this source, LTRI
instructors try hard to encourage such people to become prosecutors or
lawyers, rather than to discourage them from becoming judges.43 This justice
further offered that those LTRI graduates who had formally been refused
judgeships, allegedly for political reasons, had studied improperly, possessed
idiosyncratic views, or were otherwise not suitable to become judges.44 Cer-
tain personality types are, in his words, “dangerous” for judges to have.45
LTRI civil- and criminal-adjudication instructors fostered the author’s interest in a judicial career,
which led ultimately to his appointment to the SCJ).
38. Interview with Judge 3, supra note 37; Interview with Judge 4, supra note 33; Interview
with Judge 5, supra note 32.
39 . Daniel H. Foote, Recent Reforms to the Japanese Judiciary: Real Change or Mere
Appearance?, 66 HŌ-SHAKAIGAKU [SOCIOLOGY L.] 128, 146 (2007); Interview with Justice A,
supra note 17.
40. Interview with Justice A, supra note 17.
41. Id.
42. Id.; see also Abe, supra note 22, at 307 (reporting that the instructors usually succeed at
dissuading trainees they deem “not suitable” from applying for judgeships).
43. Interview with Justice A, supra note 17.
44. Id.
45. Id.
2009] The Anatomy of a Conservative Court 1555
Not surprisingly, the judicial hiring process has been criticized for its
lack of transparency.46 Partly in response to such criticisms, which have
emanated with particular force from the bar, recent judicial reforms
established an advisory committee on appointments with responsibility for
making recommendations to the Supreme Court as to both the initial appoint-
ment and subsequent reappointment of judges.47 The committee is composed
of representatives from different elements of the Japanese legal community:
it includes two lawyers selected by the Japanese Federation of Bar
Associations, two judges, two legal academics, two prosecutors, and three
lay members, which in practice includes at least one representative of the
business community.48 Speaking on condition of anonymity, one source with
intimate knowledge of the committee’s workings opined that the judiciary
supported its creation as a means of making it easier to remove under-
performing or incompetent judges, while at the same time enabling the
judiciary itself to avoid responsibility or blame for their ouster.49
Creation of the judicial appointments review committee has not,
however, remedied the lack of transparency surrounding the appointments
process. First, the committee has rebuffed demands from LTRI trainees, and
even from some of its own members, that it explain its selection criteria.50
Second, although the minutes of its meetings are in theory publicly available,
they do not reveal who said what, much less the actual contents of the
committee’s discussions.51 What the minutes do reveal is that the chair of the
committee has emphasized to the members of the committee that they are
working for the government and legally bound to respect the confidentiality
of its deliberations.52 According to this source, the committee members
46. See, e.g., Foote, supra note 39, at 143 (noting that the government’s own Justice System
Reform Council has called for greater transparency in the hiring process for lower-court judges); see
also Interview with Takao Tanase, Professor, Chuo Law School, in Tokyo, Japan (June 26, 2008)
(arguing in favor of greater openness in the judicial hiring process); Interview with Masako Kamiya
& Hidenori Tomatsu, Professors, Gakushuin University Law School, in Tokyo, Japan (June 27,
2008) (same); Interview with Yoshitomo Ode, Professor, Tokyo Keizai University & Former Chair,
Seihōkyō, in Tokyo, Japan (Aug. 6, 2008) (criticizing the lack of transparency and speculating
about its causes).
47. Foote, supra note 39, at 143 (discussing the creation and activities of the Kakyū saibansho
saibankan shimei shimon iinkai, or “Lower Court Judge Designation Consultation Commission”);
Miyazawa, supra note 27, at 86–87 (discussing the same body but translating its name as the
“Advisory Committee on the Nomination of Lower Court Judges”). Japanese judges are initially
hired for a ten-year term at the rank of assistant judge, after which they are, almost without
exception, either reappointed as full judges or persuaded not to seek reappointment. Reappointment
occurs at ten-year intervals thereafter until the mandatory retirement age established by statute,
which is sixty-five for lower-court judges and seventy for members of the Supreme Court. Court
Act, art. 50; O’Brien & Ohkoshi, supra note 17, at 46; Interview with Judge 5, supra note 32.
48. Interview with Committee Source, in Tokyo, Japan (June 27, 2008).
49. Id.
50. Foote, supra note 39, at 150–51; Interview with Committee Source, supra note 48.
51. Foote, supra note 39, at 146–50.
52. Id. at 151; Interview with Committee Source, supra note 48.
1556 Texas Law Review [Vol. 87:1545
selected by the bar have proven troublesome for the committee.53 They have
acted as strong advocates for the appointment and retention of former
lawyers, whom they feel are disproportionately singled out for denial of
appointment or reappointment.54 The fact that the committee makes deci-
sions on a unanimous-consent basis has on occasion enabled the attorney
members of the committee to slow down the committee’s proceedings.55
Given that the bar is widely known for being well to the left of the
judiciary,56 judicial resistance to the appointment of former lawyers to the
bench is likely to have consequences for the ideological balance of the bench.
C. Advancement Within the Judiciary
In the event that Hidari survives the initial screening process at the
hiring level, he will proceed to face a much more arduous screening process
lasting decades in the form of a career in the bureaucracy. Bureaucracy is the
right word for the Japanese judiciary in more ways than one. Approximately
one thousand people work in the monumental four-building Supreme Court
complex, of whom over three-quarters belong to the General Secretariat.57
These administrators, in turn, oversee the lives of another 3,200 judges dis-
persed across over 250 towns and cities throughout Japan.58 It is no secret
that this bureaucracy shapes the behavior and thinking of its members. In the
words of one justice: “Bureaucracy . . . is the way we cultivate young men
into something. That’s the same thing as in [Japanese] corporations.”59 The
judiciary, he emphasized, is no exception.60
By any standard, the Japanese judiciary exercises an extraordinary
degree of control over the lives of its members.61 The General Secretariat
determines not only raises and promotions but also what kinds of cases a
judge will handle and even where he or she will live at any given time.62 A
career judge is expected to accept reassignment approximately every three
years, often to undesirable locations, much like a diplomat or member of the
armed forces: a Tokyo native with a preference for criminal law cases, for
53. Interview with Committee Source, supra note 48.
54. Id.
55. Id.
56. See infra notes 125–28 and accompanying text.
57. Interview with Secretary to Justice F, Current or Former Member of the Supreme Court of
Japan, in Tokyo, Japan (Date Concealed).
58. Interview with Justice F, Current of Former Member of the Supreme Court of Japan, in
Tokyo, Japan (Date Concealed).
59. Interview with Justice D, Current or Former Member of the Supreme Court of Japan, in
Tokyo, Japan (Date Concealed).
60. Id.
61. See Frank K. Upham, Political Lackeys or Faithful Public Servants? Two Views of the
Japanese Judiciary, 30 LAW & SOC. INQUIRY 421, 453 (2005) (“[E]ven readers more familiar with
the bureaucratic judiciaries of the civil law world will be surprised by the personnel manipulation
and unrelenting supervision of the Japanese judicial system.”).
62. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 10–12.
2009] The Anatomy of a Conservative Court 1557
example, may be assigned to a family court in a rural area.63 It is common
for judges to live in government housing, which in remote locales may take
the form of dormitory-style housing provided by the judiciary.64 Upon their
arrival in a new location, they may even be given a list of bars and other
establishments to avoid.65
At any given time, it will be possible to determine from Hidari’s career
to date whether he is a viable candidate for the Supreme Court. If he is in
serious contention, he will have been groomed, or rewarded, with a series of
assignments that place him firmly upon an elite career trajectory that would
include many, if not most, of the following professional highlights. After
compiling a distinguished academic career at the University of Tokyo
(Todai) or Kyoto University (Kyodai), or possibly Chuo University, and
achieving one of the top scores on the bar exam, he attends the LTRI and is
then posted immediately or very soon thereafter to the Tokyo District
Court.66 He will develop expertise in a particular area of law, be it civil,
criminal, or administrative, and will at some point be tapped to serve as a law
clerk, or chōsakan, at the Supreme Court.67 After an assignment or two
elsewhere, he may even return to the SCJ as a shuseki chōsakan or jyōseki
chōsakan with responsibility for supervising other law clerks.68 It would not
be surprising if, additionally or in the alternative, he were to find himself
teaching at the LTRI or on loan to the Cabinet Legislation Bureau, the elite
63. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1887 (noting that the moves
expected of Japanese judges “can be, and often are, from one end of Japan to the other,” as well as
between different types of courts); Interview with Haruhiko Abe, Attorney & Retired Judge, in
Tokyo, Japan (July 16, 2008) (describing how the General Secretariat, displeased by his rulings in
politically sensitive cases, responded to his preference for criminal cases by assigning him
repeatedly to family courts); see also Takuya Asakura, A Judiciary Ruled by Conscience or
Politics?, JAPAN TIMES ONLINE, June 22, 2002, http://search.japantimes.co.jp/cgi-bin/nn20020622
a9.html (noting that, even as a family court judge, Haruhiko Abe was denied the opportunity to
handle juvenile crime cases). Technically speaking, the law provides that a judge may refuse to be
transferred against his own will, Court Act, art. 48, but as a practical matter, judges have little
choice but to either comply or resign. See R
AMSEYER & RASMUSEN, MEASURING JUDICIAL
INDEPENDENCE, supra note 3, at 10–11 (noting that a judge refuses a transfer “at his peril” and risks
denial of reappointment by doing so); Miyazawa, supra note 22, at 48 (explaining why the formal
statutory against involuntary transfers is not as effective as it might appear).
64. Interview with Judge 2, in Location Concealed (Date Concealed); Interview with Judge 3,
supra note 37.
65. Colin P.A. Jones, Japan’s Crazy Judges, 25 J. JAPANESE L. 269, 271 (2008) (book review);
Interview with Justice G, supra note 14.
66. The hypothetical elite career track described here is an amalgam of the biographies of
various justices and the accounts given by other scholars, all of which are consistent with one
another. See, e.g., JOHN OWEN HALEY, THE SPIRIT OF JAPANESE LAW 118–21 (1998); ITOH, supra
note 14, at 254–55; O’BRIEN WITH OHKOSHI, supra note 25, at 71–75; Setsuo Miyazawa & Hiroshi
Otsuka, Legal Education and the Reproduction of the Elite in Japan, ASIAN-PAC. L. & POLY J.,
June 2000, at 2:1, 2:22–24, tbl.27; Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1887–
89, 1901, 1905–06.
67. See ITOH, supra note 14, at 79 (observing that chōsakan tend to be among the most able and
influential judges of their cohort).
68. See infra subpart III(C) (discussing the responsibilities of the shuseki and jyōseki chōsakan).
1558 Texas Law Review [Vol. 87:1545
body responsible for reviewing government legislation and advising the
Cabinet on legal issues. 69 The government might bear the expense of
sending him abroad to obtain an LLM, perhaps in the United States or
Germany. In his middle-to-late career, he will hopefully serve as chief judge
of a district court within the jurisdiction of the Tokyo High Court, such as
Shizuoka, Chiba, or Yokohama; on one of Japan’s leading high courts, which
would mean Tokyo, Osaka, or perhaps Nagoya; or, better still, as chief judge
of a high court, especially one of the three just named.
Even an elite judge will, of course, spend some time in hardship
postings away from the major cities of Tokyo, Osaka, and Nagoya. By the
same token, judges who are not on the elite track stand a very good chance of
spending at least some time on the Tokyo District Court or one of the major
high courts. The fact that disfavored judges will on occasion enjoy desirable
postings is effectively guaranteed by the General Secretariat’s policy of
immediately following an assignment in a remote area with a compensating
assignment in the Tokyo area.70 Relatively speaking, however, elite judges
will spend systematically more time on prestigious courts in desirable loca-
tions and less time on family or branch courts in remote locations than their
peers.71
Above all, a judge on the elite track will spend a disproportionate
amount of time as an administrator in the General Secretariat.72 Within the
General Secretariat, in turn, the most influential and well-positioned judges
are most likely to be in the Personnel Affairs Bureau (PAB), where they will
manage the careers of their fellow judges.73 It is a mark of rare success if a
judge manages to become Director of the PAB. And if the Chief Justice
selects him to be Secretary General, he stands an even better chance of being
appointed to the Supreme Court.74
69. See Samuels, supra note 12 (describing the responsibilities, influence, and prestige of the
Cabinet Legislation Bureau).
70. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 20
(“The Secretariat maintains a long-standing rule that judges stationed to either Hokkaido or
Okinawa (the two points farthest from Tokyo) will spend their next post in Tokyo.”).
71. See ITOH, supra note 14, at 254–55 (discussing the career patterns of “elite” judges);
RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 13 (summarizing
the favorable treatment given to “fast-track judges”).
72. ITOH, supra note 14, at 254; Miyazawa, supra note 22, at 49; Ramseyer & Rasmusen,
Managed Judges, supra note 3, at 1905–10, 1912–13.
73. See, e.g., ITOH, supra note 14, at 254–55; Haley, supra note 2, at 102–05; Miyazawa, supra
note 27, at 48–49 (all discussing the power and prestige that attach to administrative positions in the
General Secretariat, particularly those pertaining to personnel matters).
74. See ITOH, supra note 14, at 26 (observing that serving as Secretary General, then as chief
judge of a major high court, seems almost to ensure subsequent appointment to the Supreme Court);
Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1884–85 (noting that a disproportionate
number of justices appointed from the lower courts have worked in the General Secretariat or
served as Secretary General); see also O’BRIEN WITH OHKOSHI, supra note 25, at 77 (noting that
every person to be appointed chief justice in the 1980s and 1990s had previously served as chief of
one or more bureaus of the General Secretariat, if not as Secretary General).
2009] The Anatomy of a Conservative Court 1559
Regardless of how well his career progresses, a judge who hopes to join
the Court must possess one last credential—namely, the right birthday.
Timing is crucial. One of the six seats on the Court informally allocated to
career judges must open when he is in his early to mid-sixties, such that he
can spend at least a few years on the Court before the mandatory retirement
age of seventy that is set by statute.75 At the same time, he cannot be too
young at the time the opening occurs, for the government does not wish to
risk being stuck for an extended period of time with a justice who behaves in
an ideologically surprising or undesirable way once he or she is safely en-
sconced on the SCJ, beyond the reach of the judiciary’s ordinary internal
control mechanisms.76 Almost no justice in recent history has served longer
than ten years before reaching mandatory retirement.77
Let us suppose that Hidari, liberal that he is, makes a habit of issuing
rulings in favor of constitutional plaintiffs that tweak the government. The
good news for him is that he is very unlikely to be fired for doing so, at least
if history is any guide. It is highly unusual for judges to lose their jobs.78
The only undisputed example of a firing that occurred for political or
ideological reasons is that of Yasuaki Miyamoto, who was denied reappoint-
ment to the bench as a full judge after his initial ten-year term as an assistant
judge for reasons that are widely acknowledged to have included his or-
ganizing activities for a left-of-center group known as Seihōkyō.79 That is
not to say that the judiciary does not strongly encourage certain judges not to
seek reappointment, to retire early, or to resign voluntarily: it does so, and
there may be no more effective way to induce a judge to resign than to tell
him that he will otherwise be fired.80 One might also reasonably question
75. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1883–84 tbl.2 (listing the
age of every justice appointed from 1983 through 2005); supra note 26 (discussing the mandatory
retirement age).
76. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 15
(suggesting that prime ministers deliberately appoint older justices to avoid the “Harry Blackmun
problem”); O’Brien & Ohkoshi, supra note 17, at 53–55 (noting empirical evidence of a bias
against younger candidates and positing that this bias may have the effect of curtailing independent
behavior on the bench); infra text accompanying notes 175–90 (discussing the deliberate preference
for appointing law professors who are already close to retirement age).
77. See O’Brien & Ohkoshi, supra note 17, at 53–55, 54 tbl.3.2 (indicating that, since the
1940s, Supreme Court justices have served an average of 6.31 years).
78. In recent years, on the advice of its judicial appointments review committee, see supra
notes 47–52 and accompanying text, the SCJ has declined to recommend a small number of judges,
on the order of perhaps three to five per year, for reappointment by the Cabinet. Interview with
Judge 5, supra note 32; Interview with Committee Source, supra note 48; see also Foote, supra note
39, at 152–53 (noting that, in its first three years of operation, the committee deemed a total of
fourteen judges unsuitable for reappointment). Prior to the creation of the committee in 2003, only
two judges had ever been denied reappointment. Foote, supra note 39, at 153.
79 . See Miyazawa, supra note 22, at 48 (noting the Supreme Court’s admission that
Miyamoto’s membership in Seihōkyō played a role in his dismissal); infra notes 85–93 and
accompanying text.
80. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 23
(discussing how one Seihōkyō member, Toshio Konno, resigned upon hearing that the General
1560 Texas Law Review [Vol. 87:1545
whether it is necessary to fire more than one judge in order for all the other
judges to get the message.81 Nevertheless, it remains the case that the judici-
ary will be keen not to formally deny Hidari reappointment as full judge
following the completion of his initial ten-year term as an assistant judge.
Miyamoto’s dismissal attracted stinging criticism that the judiciary would
undoubtedly prefer not to have repeated.82
The bad news for Hidari is that it is unnecessary for the judiciary to
threaten him with actual firing in order to discourage him from issuing liberal
rulings or to ensure that he has little impact on Japanese constitutional law.
Those who do not behave to the liking of the PAB are not given the same
opportunities, and do not enjoy the same kind of career trajectory, as those
who play along.83 The plight of judges who belong to Seihōkyō illustrates the
judiciary’s stiff approach to leftists and other ideological deviants. The
travails of this group, and in particular the judges who belonged to it, have
been documented to a considerable extent by other scholars.84 Seihōkyō is
short for Seinen Hōritsuka Kyōkai, or the Young Lawyers Association.85 In
brief, its aim is to “defend the constitution,”86 which means in practice that it
seeks to protect the pacifist provisions of the constitution from revision or
amendment. 87 Conservatives viewed Seihōkyō as little better than “a
Communist Party affiliate” 88 and attacked the judiciary for allowing its
members to belong to a group such as Seihōkyō.89 In response, the General
Secretariat urged judges to quit the organization.90 Of those who complied,
many enjoyed successful careers; indeed, several eventually became
Supreme Court justices, and one, Akira Machida, even rose to the position of
Secretariat would not reappoint him at the end of his term as assistant judge); Haley, supra note 2,
at 103 (“[A] few others may have resigned in anticipation that they would be terminated if they did
not.”).
81. Miyazawa, supra note 22, at 48; Interview with Haruhiko Abe, supra note 63.
82. Haley, supra note 2, at 126.
83. See, e.g., O’BRIEN WITH OHKOSHI, supra note 25, at 74 (noting that “[j]udges who are too
independent or too liberal” tend to be kept at a lower pay grade and assigned to less prestigious
courts and less desirable locations); Upham, supra note 61, at 424 (“No one disputes that the
Secretariat closely monitors judges’ performance for both competence and political reliability.”).
84. E.g., O’BRIEN WITH OHKOSHI, supra note 25, at 75–76; RAMSEYER & RASMUSEN,
MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 19–25, 37–43, 162–70; Haley, supra note 2,
at 121; Miyazawa, supra note 22, at 55.
85. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 19
(translating the name of the organization as the Young Jurists League); Miyazawa, supra note 22, at
55–57 (translating its name as the Young Lawyers Association).
86. Interview with Yasuaki Miyamoto, Legal Aid Attorney & Retired Judge, in Hachioji, Japan
(July 14, 2008); Interview with Yoshitomo Ode, supra note 46.
87. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 18–19.
88. Id. at 19.
89. HIROSHI ITOH & LAWRENCE WARD BEER, THE CONSTITUTIONAL CASE LAW OF JAPAN:
SELECTED SUPREME COURT DECISIONS, 1961–70, at 16–17 (1978).
90. Id. at 17.
2009] The Anatomy of a Conservative Court 1561
Chief Justice.91 Those who refused to quit the organization, however, fared
much worse. Professors Ramseyer and Rasmusen find statistically that, on
the whole, judges who belong to Seihōkyō are likely to receive less pay,
fewer administrative assignments, and more frequent assignments to undesir-
able locations.92 So too are judges who rule against the national government
on sensitive issues such as electoral apportionment or the constitutionality of
the armed forces, or who otherwise defy the wishes of the LDP.93
The General Secretariat’s practice of reassigning judges on a periodic
basis has been an effective tool for encouraging those who are too
independent or too liberal to quit.94 Reassignment to a rural or outlying area
means that a judge will lose not only the lifestyle and amenities but also the
salary supplement, that come with assignment to a major city.95 The hard-
ship is even greater for those with families.96 A judge with children will
most likely want them to attend the best schools, which are mostly located in
Tokyo and Osaka.97 In practice, many judges in less desirable locations
choose to leave their families behind and live in government dormitories.98
And even if a judge refuses to quit voluntarily, a string of undesirable assign-
ments is guaranteed to limit his or her ability to cause trouble: a judge who
has been assigned to a family court in Kagoshima will not have the same
opportunities to decide sensitive cases or shape the law as a judge on the
Tokyo High Court.
My interviewees with firsthand experience in the PAB acknowledged
that the General Secretariat gives more desirable assignments to some judges
than to others, but sought to offer an explanation that casts the General
Secretariat’s personnel decisions in a more sympathetic and nonideological
light. These judges uniformly described the biggest challenge facing the
91. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 23–
24 (noting the success enjoyed by a handful of former Seihōkyō members, including Machida).
92. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 41–47.
But see Kentaro Fukumoto & Mikitaka Masuyama, Judging Political Promotion of Judges: Survival
Analysis, Split Population Model and Matching Method 12–13 (2006) (unpublished manuscript, on
file at http://www-cc.gakushuin.ac.jp/~e982440/research/FKMM-APSA06.pdf) (applying split-
population survival analysis and matching techniques to the data analyzed by Ramseyer and
Rasmusen and finding no statistically significant evidence that judges who belonged to Seihōkyō
were promoted more slowly to prestigious administrative positions).
93. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 60–61,
80–81.
94. O’BRIEN WITH OHKOSHI, supra note 25, at 74.
95. Judges stationed in certain urban areas are eligible for a potentially hefty salary supplement
that phases out two years after the judge’s departure from the area in question. Interview with
Judge 5, supra note 32.
96. Interview with Judge 3, supra note 37.
97. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 12;
Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1887; Interview with Judge 3, supra
note 37.
98. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 12;
Interview with Judge 3, supra note 37.
1562 Texas Law Review [Vol. 87:1545
General Secretariat as the recruitment of personnel. The next hardest task
that they confronted, however, was that of “encouraging” judges to relocate
every two to four years to where they are most needed.99 One justice de-
fended the rotation system by comparing its performance to that of the
German system, which does not rotate its career judges. In his view, the re-
sult in Germany has been divergence in the quality of courts around the
country.100 The Japanese system avoids this problem, he argued, but at a cost
to the judges themselves: in a system of deliberate and continuous profes-
sional and geographical reassignment, some judges must inevitably receive
assignments that are considered less desirable.101 Meanwhile, the most desir-
able assignments—namely, in the biggest cities and on the largest courts—
also carry with them the heaviest caseloads and the greatest need for judges
who process cases quickly.102 Yet the result of assigning only the most capa-
ble judges to Japan’s biggest cities and largest courts is to make slower, less
competent judges feel that they are perpetually mistreated.103 The General
Secretariat therefore faces a difficult tradeoff between making judges feel
that the personnel assignment system is fair and sending judges where they
are most needed—one that is necessarily resolved to some degree to the
systematic disadvantage of some judges. This explanation certainly sounds
plausible, but it flies in the face of the scholarly consensus, if not also the
statistical evidence.104 The prevailing view among observers is that Japanese
judges march out of ideological sync with the bureaucracy at their own
peril.105
99. Interview with Justice F, supra note 58. As a formal matter, judges are free to reject
reassignment, but as a practical matter, such reassignments are a requirement of the job, and a judge
who refuses to accept a routine transfer runs the risk of being denied reappointment at the expiration
of his or her ten-year term. See supra note 63 and accompanying text.
100. Interview with Justice A, supra note 17.
101. Id.
102. Id.; see also Miyazawa, supra note 22, at 49–50 (describing the usual justifications given
for the preferential assignment of certain judges to more desirable courts and locations).
103. Interview with Justice A, supra note 17.
104. Even after controlling for differences in productivity as measured by each judge’s output
of opinions, Ramseyer and Rasmusen find that “leftist” judges fare worse in their careers.
RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 80–81. The
validity of this finding, however, has been questioned on methodological grounds. See Fukumoto &
Masuyama, supra note 92, at 12 (arguing that Ramseyer and Rasmusen’s analysis is based on
inaccurate data, fails to account for time dependence, and critically depends on their model’s
misspecification).
105 . See, e.g., O’BRIEN WITH OHKOSHI, supra note 25, at 72–76 (noting that judicial
assignments and salary adjustments have been manipulated to ensure ideological conformity); Abe,
supra note 22, at 307–09, 318 (arguing that the General Secretariat uses its power over transfers and
promotions to secure obedience to the internal norms of the judiciary); Haley, supra note 2, at 121–
28 (arguing that the conservatism of the Japanese judiciary is the product of strong internal
discipline exerted by the conservative leadership of an autonomous judicial bureaucracy);
Miyazawa, supra note 22, at 52, 50–52 (arguing, and offering evidence, that Japanese judges “need
tremendous courage to decide a case in the way that is likely to displease the [General Secretariat]”
and that their assignments depend more upon the policy content of their decisions and their outside
activities than upon their legal-reasoning skills or ability to dispose of cases efficiently); supra note
2009] The Anatomy of a Conservative Court 1563
The General Secretariat, or perhaps more accurately, the PAB, pos-
sesses two powers that effectively ensure that an already conservative
judiciary will remain conservative with very little effort or intervention on
the part of political actors. The first, as discussed above, is its power to ad-
vance or derail a judge’s career.106 The second, which is equally crucial, is
its ability to choose its own members and leadership. In theory, the most
influential members of the judiciary should be, in descending order of formal
rank, the Chief Justice, followed by the Secretary General, and then the
Director of the PAB. Both the Secretary General and the Director of the
PAB are, in theory, selected by the saibankan kaigi, or justices’ conference,
which consists of all fifteen members of the SCJ.107 According to one
experienced observer of the Japanese judiciary, however, the most influential
official may in fact be the Director of the PAB.108 Moreover, although the
saibankan kaigi is formally responsible for personnel matters such as the
selection of the Director of the PAB, it does not decide who the candidates
for the position will be.109 One justice with PAB experience explained the
reality thusly: “The most influential person chooses the candidate. Who is
most influential depends on the situation.”110 The Chief Justice is, “generally
speaking,” “the most influential” person in the judiciary, but not necessarily
so, especially if he personally lacks experience in personnel matters.111 With
respect to the directorship of the PAB in particular, the existing director will
usually name his successor; failing that, the Chief Justice, “a more influential
justice,” or the Secretary General will come up with a nominee. 112
Ordinarily, a handful of senior judges will consult one another, with the
practical result that “everyone knows who will be picked.”113 The Chief
Justice is free to reject the candidate who emerges from this process of heir
selection and informal consultation, but the justice in question stated quite
bluntly that he could not even “imagine such a case.”114
It is on account of the judiciary’s power not only to decide who will
advance professionally, but also to select its own membership and leadership,
that the institution is characterized by a high degree of ideological inertia:
once set in motion upon a particular path, it will continue reliably and indefi-
nitely down that path. Those in the PAB use their power over the careers of
92 and accompanying text (discussing the statistical findings of Ramseyer and Rasmusen regarding
the fate of “leftist” judges).
106. See supra notes 61–105 and accompanying text.
107. See ITOH, supra note 14, at 250–51 (discussing the composition and operating procedures
of the kaigi).
108. Interview with Shinichi Nishikawa, Professor, Meiji University, in Tokyo, Japan (Aug. 20,
2008).
109. Interview with Justice A, supra note 17.
110. Id.
111. Id.
112. Id.
113. Id.
114. Id.
1564 Texas Law Review [Vol. 87:1545
other judges to place likeminded colleagues in positions of power much like
their own. The resulting patterns of appointment and promotion are both
circular and self-reinforcing. Judge A, on assignment to the PAB, may
assign Judges B and C to positions in the PAB; Judges B and C will, in turn,
promote one another and later bring Judge A back into the administrative
fold after a brief foray into the world of actual adjudication. In the words of
Miyazawa and Otsuka, the “elite judges who repeatedly serve in the General
Secretariat virtually appoint and promote each other.”115 And, one might
add, they are unlikely to appoint and promote someone like Hidari to a posi-
tion from which he might reach the SCJ unless he is able to deceive everyone
around him, over several decades as a career judge, of his true intentions.
Relatively few jurists are likely to succeed at hiding their true colors for over
forty years in the distant hope of one day securing a spot on the Supreme
Court. The Chief Justice could, in theory, pluck Hidari from the depths of
obscurity, were he to be so inclined. But there is no reason to think that he
would be. He is likely not to defy, but to embody, the ideological proclivities
of the system that screened, groomed, and elevated him.
D. Other Paths to the Supreme Court
In light of the realities of a career in the judiciary, Hidari might
seriously wish to consider pursuing an alternative route to the Supreme
Court. The good news is that alternative routes do exist: career judges are
allocated only six of the court’s fifteen seats.116 With respect to a number of
the remaining seats, the judiciary plays a relatively minimal role in the
identification and nomination of candidates. Moreover, vacancies occur
much more frequently in Japan than in the United States owing to a combina-
tion of factors—namely, the relatively high number of seats, the statutorily
imposed mandatory retirement age of seventy, and the practice of appointing
justices in their mid-sixties.117 It is not unusual, therefore, for three or four
vacancies to materialize in the space of a single year.118 The bad news is
115. Miyazawa & Otsuka, supra note 66, at 2:23; see also ITOH, supra note 14, at 254
(observing that “the secretaries general have predominantly been recruited from among bureaucrats
in the general secretariat”).
116. See infra notes 141–43 and accompanying text.
117. See Kunio Hamada, Korekara no Saikō Saibansho no Arikata ni Tsuite Zenpen [What the
Supreme Court Should Be in the Future, Part One], NIBEN FRONTIER, Oct. 2007, at 23, 29 (noting
that, as of October 2007, 148 justices had served on the Court); infra text accompanying notes 179–
82 (discussing the deliberate preference for appointing law professors who are already close to
retirement age).
118. See O’Brien & Ohkoshi, supra note 17, at 54 tbl.3.2 (setting forth the number of SCJ
appointments made by each of Japan’s Prime Ministers); Ramseyer & Rasmusen, Managed Judges,
supra note 3, at 1883–84 tbl.2 (listing all appointments to the SCJ from 1983 through 2005).
Between September 2008 and February 2009, for example, four justices were appointed to the
Court. See Supreme Court of Japan, Justices of the Supreme Court, http://www.courts.go.jp/english
/justices/index.html (providing the dates of appointment for Justices Miyakawa, Sakurai, Takeuchi,
and Kanetsuki).
2009] The Anatomy of a Conservative Court 1565
that, no matter what route Hidari might attempt to pursue, the deck remains
firmly stacked against him. Each of the extrajudicial career paths by which
our liberal protagonist might attempt to reach the SCJ has its own pitfalls and
limitations. Let us consider each in turn.
1. Appointment to the Court as a Former Prosecutor.—As unlikely as
Hidari is to succeed at reaching the SCJ via a career in the judiciary, he is
probably even less likely to succeed via a career as a prosecutor in the
Ministry of Justice, or Hōmushō. Even more so than its judges, Japan’s
prosecutors have a reputation for conservatism.119 In practice, the Ministry
of Justice makes recommendations to the Chief Justice as to who should be
appointed to fill the two seats that are allocated to former prosecutors.120 By
all accounts, the Chief Justice and General Secretariat do not give much scru-
tiny to its recommendations before relaying them to the Prime Minister.121
Nor is there much reason why they should. From the judiciary’s perspective,
the Hōmushō qualifies as a trusted partner. Prior to World War II, the judici-
ary was under the control and supervision of the Ministry of Justice.122
Although the postwar constitution conferred independence upon the
judiciary, the two organizations have continued to maintain close ties. The
long-established practice of hanken kōryu, by which up to twenty percent of
prosecutors spend time as judges and vice versa, is one mechanism for the
deliberate cultivation of a shared outlook and mindset.123 The justices se-
lected by the Hōmushō enjoy a reputation for being conservative and
thinking the same way as the career judges on the Court. 124 Without
exception, my interviewees lumped together the former career judges and the
former prosecutors when discussing the ideological fault lines on the SCJ. It
should come as little surprise that former prosecutors who have spent their
lives representing the government in court should exhibit a continuing ten-
dency to side with the government once appointed to the bench.
In short, unless Hidari has reason to believe that it will be easier for him
to fool the senior bureaucrats at the Hōmushō than the senior judges in the
General Secretariat, he will not find a career as a prosecutor to be a
promising route to the Supreme Court.
119. Interview with Justice B, supra note 17; Interview with Justice F, supra note 58.
120. Interview with Justice F, supra note 58; see also Haley, supra note 2, at 111 (indicating
that “senior prosecutors” are responsible for selecting the candidates).
121. Interview with Justice F, supra note 58; see also Haley, supra note 2, at 111–
12 (suggesting that “[n]either the chief justice nor the secretary general has any voice” in
determining which prosecutors will be eligible for appointment to the Court).
122. RAMSEYER & ROSENBLUTH, supra note 3, at 158; Haley, supra note 2, at 117.
123. See Miyazawa, supra note 22, at 50–51 (discussing the personnel exchange arrangement
between the judiciary and the Ministry of Justice); see also Yasuo Hasebe, The Supreme Court of
Japan: Its Adjudication on Electoral Systems and Economic Freedoms, 5 INTL J. CONST. L. 296,
300 (2007) (noting that the Ministry of Justice recruits heavily from the judiciary to fill “higher-
ranking” positions).
124. Interview with Justice B, supra note 17; Interview with Justice F, supra note 58.
1566 Texas Law Review [Vol. 87:1545
2. Appointment to the Court as a Former Attorney.—Hidari is likely to
find the Japanese bar a more hospitable environment than either the judiciary
or the Ministry of Justice.Traditionally, lawyers in Japan have been a rela-
tively left-leaning bunch.125 The “protection of fundamental human rights”
and the pursuit of “social justice” are, quite literally, the official goals and
responsibilities of the bar.126 Japanese lawyers are likely, moreover, to work
in very small firms and to prize their independence—to exhibit, in other
words, the very opposite of a bureaucratic mentality.127 These characteristics
of the Japanese bar have been reflected to some extent in the behavior of the
justices who are appointed from private practice. The justices I interviewed
were in agreement that, on the whole, the former bengoshi tend to be more
liberal, and are more prone to dissent, than their colleagues who were judges
or prosecutors. Two justices from opposite backgrounds—a generally liberal
justice who had been a lawyer and a generally conservative justice who had
been a career judge—characterized and explained the differences in outlook
between the two groups in almost exactly the same terms: decades of experi-
ence on the bench lead the former judges to value “stability,” whereas former
lawyers are more likely to emphasize the protection of human rights and
“how the world should be.”128
In the same manner as the Ministry of Justice nominates candidates to
fill the seats allocated to former prosecutors, it falls upon the Japan
Federation of Bar Associations (JFBA) and its member organizations to
suggest candidates for the four seats on the SCJ that are allocated to former
lawyers. One justice who was appointed from the bar described the process
by which the JFBA nominates candidates as follows.129 Each of Japan’s five
major local bar associations—the Tokyo Bar Association, the Tokyo First
Bar Association, the Tokyo Second Bar Association, the Osaka Bar
Association, and the Kyoto Bar Association—holds hearings and selects a
candidate.130 Historically, the candidate has typically been the president or
some other high-ranking officer of the bar association in question, but this
pattern appears to have broken down somewhat in recent years. Among the
three Tokyo-based organizations, lawyers self-select into the bar association
of their choice, which has the result of creating “big differences” among
125. See Haley, supra note 2, at 51 (noting the “remarkable” extent to which “left-liberal” and
“[p]rogressive-reform” lawyers have dominated both national and local bar associations and
influenced Japanese society at large).
126. See id. at 52 (quoting the Preamble to the 1987 Code of Attorney Ethics); Japan Federation
of Bar Associations, Articles of Association of Japan Federation of Bar Associations, July 9, 1949,
at 2, http://www.nichibenren.or.jp/en/about/pdf/articles.pdf (“This Federation shall be the source of
protection of fundamental human rights and of realization of social justice.”).
127. See Haley, supra note 2, at 53–54 (“A deeply felt desire for independence or freedom from
control by others motivates nearly all lawyers in Japan.”).
128. Interview with Justice B, supra note 17; Interview with Justice G, supra note 14.
129. Interview with Justice B, supra note 17.
130. Id.
2009] The Anatomy of a Conservative Court 1567
them in overall professional background and ideological flavor. 131 The
Tokyo Bar Association, in particular, enjoys a reputation for being more
heavily stocked with graduates of private universities (as opposed to Todai
and Kyodai), and thus having a more liberal atmosphere, whereas the Tokyo
First Bar Association is comprised more heavily of lawyers from large firms
who tend to be somewhat more conservative.132 These ideological differ-
ences among the three Tokyo bar associations have contributed indirectly to
a permanent shift in the composition of the Court, as will be explained
below.
The JFBA, which is an umbrella organization encompassing all of the
local bar associations, subsequently holds an all-bar committee meeting at
which the number of candidates is reduced to roughly three.133 This short list
of candidates is forwarded to the judiciary, which then selects one or two
names for recommendation to the Prime Minister.134 In deciding whom to
nominate in any given case, the JFBA strives to maintain a balance of
representation on the SCJ from each of the local bar associations. Although
the rule is an informal one, the three Tokyo-based bar associations and
Osaka’s bar association each expect to have at least one member on the
Court, with the Nagoya and Kobe bar associations vying on occasion for the
last seat.135
Those with experience in the PAB indicated that the JFBA’s
recommendations are accepted as a matter of course and that the judiciary
neither interferes with nor intervenes in the process by which the bar
associations choose their nominees. It would be naive to conclude, however,
that the JFBA has a free hand in deciding who will be appointed to the Court.
No one denies that the bar associations consult and negotiate with the
General Secretariat before settling formally upon their nominees. Such
discussions prevent the nomination of candidates who will be unacceptable
131. Id.
132. The justice in question characterized the Tokyo Bar Association as the most liberal of the
three local bar associations in Tokyo, see id., but the Tokyo Second Bar Association, having split
from the other two on ideological grounds, is sometimes said to be more liberal. See E-mail from
Masako Kamiya, Professor, Gakushuin University Law School, to David S. Law, Professor,
Washington University in St. Louis (Mar. 10, 2009, 23:34:43 CST) (on file with the author)
(deeming the Tokyo Second Bar Association the “most liberal” of the three and describing the
Tokyo Bar Association as “middle-of-the-road”). In either case, however, both are reputedly to the
left of the Tokyo First Bar Association.
133. Interview with Justice B, supra note 17.
134. Id.
135. Of the twenty-six practicing attorneys appointed to the Supreme Court of Japan between
1947 and 1980, sixteen had previously served as president or vice president of a local bar
association. Of these, ten hailed from the various Tokyo bar associations, two from the Osaka Bar
Association, and one from each of the Nagoya and Kobe bar associations. MERYLL DEAN,
JAPANESE LEGAL SYSTEM 324 (2d ed. 2002); see also Haley, supra note 2, at 109 (“[T]he
predominance of former bar officials [among those attorneys appointed to the Supreme Court of
Japan] exemplifies the influence of the bar itself rather than political leaders on which attorneys are
selected to become justices.”).
1568 Texas Law Review [Vol. 87:1545
to the judiciary. The leadership of the bar is aware that there are unwritten
limits to whom it can choose. Candidates cannot be unacceptably liberal or
possess a paper trail of public statements on controversial issues that will
offend the sensibilities of the government.136 The relevant bar associations
are aware that if they recommend candidates who turn out to be unacceptable
to the judiciary, not only will the candidates be rejected, but the bar associa-
tions themselves risk jeopardizing their credibility and influence over future
nominations.137 If the JFBA’s recommendations are always accepted by the
Chief Justice, that is because the bar takes care only to recommend people
who are acceptable to the Chief Justice.
It should be obvious to Hidari that the bar offers liberal-minded people
such as himself a plausible path to a seat on the Supreme Court. Given the
sheer number of lawyers with whom he must compete, the odds are of course
against him. Nevertheless, if he were to pursue a career in private practice,
cultivate his professional associations carefully, refrain from taking overtly
liberal positions in public, and rise to a position of prominence within one of
Tokyo’s bar associations, Hidari might stand a chance of reaching the SCJ.
Unfortunately, the potentially liberal influence of the bar on the SCJ is obvi-
ous to the judiciary as well, and it has responded over time by altering the
composition of the Court to ensure that it maintains the upper hand to the
disadvantage of the bar and, in particular, the relatively liberal Tokyo Bar
Association.
There is no formal or legal requirement that the fifteen seats on the
Court must be allocated in any particular way among different segments of
the legal community, but such a practice established itself early in the
Court’s history. At its inception in 1947, the Court consisted of six career
judges, five lawyers, one prosecutor, one law professor, one judicial
administrator, and one diplomat.138 An expectation soon developed that the
seats on the Court would be equally split among three different groups: five
seats were to be allocated to “judicial officials” (a category that encompassed
both judges and prosecutors), five seats to private attorneys, and the last five
to academics, bureaucrats, and persons who might loosely be classified in
some sense as “intellectuals.”139 As Hiroshi Itoh observes, “the equal ratio
among these groups came to be seen almost as a vested right of each group.
Whenever a vacancy arose, the group which had lost the position acted as if
it were entitled to have one of its men fill the vacancy.”140
136. See Interview with Setsuo Miyazawa, Professor, Aoyama Gakuin Law School, in Tokyo,
Japan (Aug. 7, 2008).
137. Id.
138. ITOH, supra note 14, at 24.
139. Id.; Shigenori Matsui, The History of the Japanese Supreme Court 6 & n.12 (June 14,
2008) (unpublished manuscript, on file with the author).
140. ITOH, supra note 14, at 24–25.
2009] The Anatomy of a Conservative Court 1569
According to Professors O’Brien and Ohkoshi, the current convention is
for the Court to have six former judges; four or five former lawyers; two
former bureaucrats, one of whom should be a former diplomat; one or two
former prosecutors; and one former law professor.141 As of this writing, the
Court’s actual membership matches the unwritten rule perfectly. It consists
of six career judges (including Chief Justice Hironobu Takesaki), four former
lawyers, two prosecutors, one law professor, one bureaucrat (who also hap-
pens to be the only woman on the court), and one diplomat.142 The precise
allocation of seats does vary from time to time. For example, from April
2003 through March 2006, the Court had three former bureaucrats and only
seven judges and prosecutors.
One change in the Court’s composition, however, appears to have been
both permanent and deliberate. In 1958, under Chief Justice Koutarou
Tanaka, two former lawyers left the Court, but only one of them was
replaced by another former lawyer; the other seat was reallocated to the ca-
reer judiciary.143 The real reason for this change is a matter of some dispute.
The official rationale, according to one justice, had to do with the structure of
the Court.144 The SCJ is divided into three petty benches, each consisting of
five justices, which handle the vast majority of the court’s caseload.145 Only
in rare and unusually important cases does the SCJ convene in the form of a
grand bench consisting of all fifteen justices.146 The justices do not rotate
among the petty benches;147 nor do the petty benches specialize by subject
matter. In light of the fact that all of the petty benches hear both criminal and
civil cases, it was argued that each petty bench should possess both criminal
and civil law expertise. By expanding the number of career judges on the
Court from five to six, it would supposedly become possible to equip each of
the petty benches with both a criminal law judge and a civil law judge.
The same justice who described this explanation to me also considered
it utterly unconvincing. As he emphasized, the fact that there are a total of
six former judges on the Court does not, in fact, enable each petty bench to
enjoy the services of both a criminal law judge and a civil law judge. The
Chief Justice is among this total of six, but he customarily does not
participate at all in petty bench deliberations. 148 To the extent that he
141. O’Brien & Ohkoshi, supra note 17, at 52.
142. See Supreme Court of Japan, supra note 118 (linking to biographies of the justices).
143. Interview with Justice F, supra note 58.
144. Interview with Justice B, supra note 17.
145. J. Mark Ramseyer, Predicting Court Outcomes Through Political Preferences:
The Japanese Supreme Court and the Chaos of 1993, 58 DUKE L.J. 1557, 1576 & tbl.1 (2009).
146. See id. (noting that, in practice, even cases that are supposed to be heard by the grand
bench tend be decided by the petty benches and that the grand bench has tended to publish zero to
two opinions per year).
147. Interview with Justice B, supra note 17.
148. Id.; see also ITOH, supra note 14, at 251 (noting that the Chief Justice “spends most of his
time on judicial administration”). The current Chief Justice is a rare exception. Chief Justice
1570 Texas Law Review [Vol. 87:1545
participates in actual adjudication, he does so only in his capacity as head of
the grand bench. Thus, one of the petty benches ordinarily operates with
only four members, only one of whom is a former judge, yet there has never
been any serious suggestion or genuine suspicion that the short-handed petty
bench handles cases less capably than the other two petty benches.
This justice voiced his belief that the real reason for this permanent shift
in the composition of the Court was that some person or group—perhaps
Chief Justice Tanaka, who was known for being strongly conservative—
sought to empower the conservatives on the Court at the expense of the
liberals. A reallocation of seats to the judiciary, at the expense of the bar, has
a substantive impact on the ideological direction of the Court because, on the
whole, former judges and prosecutors have generally been the most
conservative members of the Court, while former attorneys and academics
have generally enjoyed the opposite reputation.149 The brunt of the change,
moreover, was borne specifically by the Tokyo Bar Association, which had
previously enjoyed two seats but was henceforth reduced to one.150 Among
the various local bar associations that are informally allocated seats on the
SCJ, the Tokyo Bar Association enjoys a relatively liberal reputation.151 Nor
did this justice consider it mere coincidence that at the same time that its
allocation of seats was halved, the Tokyo Bar Association had been voicing
criticism of the conservative decisions being issued by the SCJ.152
The result of this shift in the Court’s composition has been not only to
reduce the number of opportunities for a liberal like Hidari to join the SCJ
but also to ensure that even if liberals like Hidari occasionally reach the SCJ,
they will be outnumbered. The justice noted that, even under a best-case
scenario, any liberals on the Court are likely to be outnumbered by the
Court’s conservatives: at best, the liberals are likely to muster only seven
votes, whereas the conservatives can reliably expect to muster a minimum of
eight votes. For the liberals even to reach seven votes requires not only that
the four lawyers on the Court and the law professor must exhibit ideological
solidarity but also that the two bureaucrats on the Court must join them.
That, in turn, is inherently unlikely, given that the bureaucrats are by
definition products of the Japanese bureaucracy and have moreover been
handpicked by the LDP to serve on the Court, as discussed below.153 By
Takesaki explained his recent decision to participate in petty bench deliberations on the ground that
he wished to acquire firsthand knowledge of the Court’s activities: unlike most of his predecessors,
he had not previously served on the SCJ at the time of his appointment. Saikōsai Shōhōtei
de Chōkan ga saibanchō ni Takesaki-shi Irei no sanka [Chief Justice Takesaki Takes the Unusual
Step of Participating in Petty Bench Deliberations: Rare for Chief Justice to Participate in Petty
Bench Deliberations], NIHON KEIZAI SHIMBUN [NIKKEI], Mar. 10, 2009, at 34; E-mail from
Masako Kamiya, supra note 132.
149. See supra notes 124–25 and accompanying text.
150. Id.
151. See supra notes 126, 132 and accompanying text.
152. See Interview with Justice B, supra note 17.
153. See infra section II(D)(3).
2009] The Anatomy of a Conservative Court 1571
contrast, the six judges and two prosecutors are likely to be reliably
conservative, and even if they are unable to secure an ally or two from
among the bureaucrats, they already constitute a majority of the Court.
3. Appointment to the Court as a Former Bureaucrat.—The two former
bureaucrats on the SCJ come from a range of backgrounds. Typically, one of
the two seats is held by a former diplomat.154 There are substantive reasons
for allocating one seat to a diplomat: it is considered useful for the Court to
have someone with expertise in questions of treaty interpretation and interna-
tional law.155 The other seat may be held by someone with experience in the
Cabinet Legislation Bureau, or by someone with little or no legal experience
at all apart from an undergraduate degree in law.156 This seat is also the only
one ever to have been occupied by a woman—most recently Justice Ryuko
Sakurai, formerly of the Ministry of Labor.157
For present purposes, there are two important things to know about the
former bureaucrats who serve on the Court. First, they are usually not that
liberal.158 Such generalizations about the ideology of the justices based on
their professional background and personal history are, of course, subject to
notable exceptions. Thus, for example, Hiroshi Fukuda, a former ambassa-
dor who retired from the Court in 2005, earned a reputation, albeit almost
invariably in dissent, as a steadfast champion of voting rights.159 Nor, for
that matter, has every former career judge to serve on the Court been relent-
lessly conservative: Tokuji Izumi, a former Director of the PAB and
Secretary General who recently retired from the Court, was noted in the press
for having compiled a surprisingly liberal voting record after his elevation to
the SCJ.160 But such individuals are indeed exceptions, and as this Article
has sought to illustrate, there is a gamut of reasons why such individuals do
not reach the Court in greater numbers.
The second thing to know is that the former bureaucrats are the only
justices who are, in practice, selected in precisely the manner contemplated
154. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1885 (noting that five of
the twelve bureaucrats to serve on the Court from 1983 to 2005 were former diplomats).
155. Interview with Justice A, supra note 17.
156. Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1885; Interview with Justice A,
supra note 17.
157. See Haley, supra note 2, at 108 (describing the two previous female occupants of the seat);
Supreme Court of Japan, Justices of the Supreme Court, http://www.courts.go.jp/english/justices/
sakurai.html (providing Justice Sakurai’s biography).
158. Interview with Justice B, supra note 17.
159. Id.; see also Interview with Justice G, supra note 14 (suggesting that Justice Fukuda might
arguably be grouped with the Court’s former attorneys in terms of his willingness to dissent).
160. Shingo Miyake, Wadai hanketsu erīto syudō [High-Profile Judgments Issued by the Elite],
NIHON KEIZAI SHIMBUN [NIKKEI], July 5, 2004, at 19, 19–20.
1572 Texas Law Review [Vol. 87:1545
by the constitution: namely, they are selected by the Cabinet.161 One justice
noted, perhaps with irony, that the notion that the Chief Justice is the one
who actually decides whom to nominate is mere tatemae, or superficial
appearance.162 Rather, what lies on the face of the document, which would
appear to be tatemae, is in fact the truth: the Cabinet tells the Chief Justice
whom it would like to appoint, the Chief Justice duly submits this name to
the Prime Minister, and the Cabinet then approves its own choice.163
The odds are thus extremely slim that an ideological outlier such as
Hidari could ever reach the Court via a career in some bureaucracy other than
the Ministry of Justice or the judiciary itself. Were he to take this route, he
would maximize his meager chances by entering the Ministry of Foreign
Affairs as a junior diplomat in the hope of someday rising to the rank of
ambassador, or by somehow becoming the head of the Cabinet Legislation
Bureau. Above all, he must be directly selected by the LDP from a wide uni-
verse of candidates. And the LDP is not in the business of appointing
liberals to the Supreme Court of Japan.
4. Appointment to the Court as a Former Law Professor.—To date,
little has been written about the process by which a law professor is chosen
to fill the last seat on the Court. Professor Haley has argued that, as with the
other seats on the SCJ, the process is a relatively structured one that narrows
the field down to a small handful of candidates and ultimately leaves the
Chief Justice with relatively little discretion.164 My own research suggests,
however, that the process is relatively ad hoc and unstructured, with few
informal rules or understandings to guide it. As a result, there may be no seat
on the Court that the Chief Justice has greater discretion in filling than that of
the lone legal academic.
This lack of structure reflects both the relative infrequency with which
former academics are appointed and the absence of any formal organization
of legal academics, analogous to the JFBA or a government ministry, that
might generate the requisite procedure for identifying candidates. One
justice, himself a former law professor, described the process by which he
was appointed as a “black box” of which he had no knowledge.165 Another
justice who had served as both Secretary General and Director of the PAB
indicated that the appointment of legal academics operates on a “case by
case” basis.166
161. See KENPŌ art. 79, para. 1 (“The Supreme Court shall consist of a Chief Judge and such
number of judges as may be determined by law. All such judges excepting the Chief Judge shall be
appointed by the Cabinet.”).
162. Interview with Justice F, supra note 58.
163. Id.
164. Haley, supra note 2, at 108–09.
165. Interview with Justice C, Current or Former Member of the Supreme Court of Japan, in
Tokyo, Japan (Date Concealed).
166. Interview with Justice F, supra note 58.
2009] The Anatomy of a Conservative Court 1573
This justice was, however, able to elaborate upon the process at slightly
greater length. He characterized the overall process as an underdeveloped, if
not “primitive,” one in which the General Secretariat plays a substantial
role.167 If the Cabinet happens to have a particular candidate in mind, it will
simply make the selection itself. If it does not, it will ask the judiciary to
choose, and the choice will devolve upon the Chief Justice, who will ask the
General Secretariat to identify and evaluate potential candidates. In such
cases, it will fall upon the Director of the PAB to do most of the work.168
The Director of the PAB, in turn, is likely to lack a clear roadmap for
performing the necessary consultations and evaluations.169 In this justice’s
view, the absence of any preexisting institutional structure for narrowing the
field and grooming potential candidates tends to ensure that the General
Secretariat will be involved to a greater extent in the selection of law
professors than in filling any other type of vacancy on the SCJ.
To be sure, the field of candidates can be pared down somewhat by age,
reputation, and area of expertise. A different justice who had also been
Director of the PAB opined that the search would be likely to focus on
scholars in areas of substantive expertise that are especially valuable to the
SCJ, namely civil law, criminal law, administrative law, and treaty
interpretation.170 He also noted that the General Secretariat would be likely
to seek the input of the former law professor who was being replaced. My
judicial and academic interviewees alike agreed, however, that it has become
harder over time to identify a single obvious choice for the academic seat.
Some twenty years ago, Shigemitsu Dando and Masami Itoh were Todai law
professors of uniquely towering reputation that rendered them obvious
choices for the Court.171 By contrast, Japanese legal academia today presents
a larger, more complex, and more varied field of candidates from which no
obvious single, choice can be expected to emerge.172
The law professors who have served on the Court have, on the whole,
enjoyed a reputation for being relatively liberal and independent minded.173
This should come as no surprise to anyone, given the leftward tilt of Japanese
legal academia. It is not difficult, however, for the judiciary to blunt their
impact. One simple but effective way in which it has done so has been to
limit the professoriate to a single seat. Another way has been to refrain from
selecting candidates who are too liberal. No professor can hope to reach the
Court if he or she is further to the left than the Chief Justice and General
167. Id.
168. Id.
169. Id.
170. Interview with Justice A, supra note 17.
171. Interview with Justice F, supra note 58.
172. Interview with Justice A, supra note 17; Interview with Justice F, supra note 58; Interview
with Justice G, supra note 14; Interview with Masako Kamiya & Hidenori Tomatsu, supra note 46.
173. See O’Brien & Ohkoshi, supra note 17, at 57–58 (finding that the Court’s former law
professors authored over a quarter of all nonmajority opinions issued between 1981 and 1993).
1574 Texas Law Review [Vol. 87:1545
Secretariat are prepared to tolerate. The conservative senior judges who
participate in the selection process enjoy both substantial discretion and an
increasingly wide range of candidates from which to choose. They have both
the incentive and the capacity to avoid appointing a dedicated liberal whose
goal in life is to push the Court to the left. To reach the Supreme Court,
someone like Hidari has little alternative but to fool these gatekeepers, and it
will certainly not be easy for him to do so via a career in academia. It is not
clear how he could rise to sufficient prominence as a scholar without also
generating a substantial, and most likely incriminating, paper trail. His
obligation and responsibility as an academic will be to express his views, not
to conceal them, but in doing so, he will give the gatekeepers all the warning
they need to keep him locked safely outside the gates.
III. Institutional Pressures on Sitting Justices
A. Time Constraints—Part I: Imminent Retirement
Even if Hidari somehow beats the very considerable odds and manages
to secure a place on Japan’s highest court, he will still be in no position to
revolutionize Japanese constitutional jurisprudence or awaken the Court from
its long slumber. Instead, he will find himself operating under a set of de-
mands and constraints that make it difficult for him to have much impact. He
will also discover, as one justice ruefully observed, that the Supreme Court
of Japan is “just another bureaucratic organization.”174 As in any bureau-
cratic organization, the rules and practices of the institution can be expected
to shape the outlook and behavior of its members. Indeed, in certain
respects, one might say that the Court constrains the justices more than the
justices shape the Court.
The first problem that Justice Hidari can expect to encounter, as
previously discussed, is that he will be outnumbered: the process for
appointing justices and the manner in which seats are allocated ensure that
liberals are very unlikely to constitute a majority of the Court. The second
problem is that he will lack the raw resources that he needs to accomplish his
goals. One crucial resource that he will clearly lack is time. Whatever he
wishes to accomplish—and the goal of transforming the Court’s constitu-
tional jurisprudence is extremely ambitious—he will have very little time in
which to do so. Justices are appointed very close to the mandatory retire-
ment age of seventy that is imposed by statute.175 The average length of
service on the Court has declined from over eight years in the 1940s and
1950s to five and a half years as of the 1990s.176
174. Interview with Justice E, Current or Former Member of the Supreme Court of Japan, in
Tokyo, Japan (Date Concealed).
175. See O’Brien & Ohkoshi, supra note 17, at 53–54 (reporting that most justices are
appointed in their sixties and that the average age of justices appointed in 1990–1995 was 64.2).
176. See id. at 54 tbl.3.2.
2009] The Anatomy of a Conservative Court 1575
Nor does the variation in length of tenure among justices appear to be
entirely random. Rather, the historical pattern suggests a deliberate effort to
prevent potentially liberal justices from exercising too great an influence
over the Court. Those justices whose professional background suggests they
are at greater risk of behaving more independently—namely, former
attorneys—appear to be appointed at an older age. From the creation of the
Court in 1947 through the present, former judges have served an average of
7.0 years, while both former bureaucrats and former prosecutors have served
6.9 years, but former attorneys have served only 5.0 years on average.177 The
gap between the average tenure of former attorneys and that of justices from
other backgrounds is statistically significant.178 Consistent with this pattern,
the latest attorney to join the court, Koji Miyakawa, was sixty-six at the time
of his appointment in the summer of 2008, which means he will serve no
longer than four years.
Former law professors have served an average of almost 7.5 years, but
from a statistical perspective, they serve no longer than any other group of
former justices except the former attorneys.179 Moreover, there is reason to
expect that law professors will, in the future, be appointed to the Court closer
to retirement age. A justice with extensive experience in personnel matters
indicated that the current goal is to appoint law professors who will serve no
longer than five years.180 The motivating concern, he explained, is that there
is little that the Diet or Cabinet can do if a justice turns out to adopt
“unpopular” positions or to decide cases in ways “not supported by the
people.”181 If someone who takes such positions is appointed at too young an
age, the resulting situation will be “hard to change.” 182 Appointing
potentially problematic justices at an older age, by contrast, helps to ensure
that, even if the occasional troublemaker slips through the appointments
process, he or she will be quickly replaced.
177. These statistics are calculated from the biographical data on all former justices that is
posted on the Court’s official website, which is current through the retirement of Justice Tokuji
Izumi in January of 2009. Courts in Japan, http://www.courts.go.jp/saikosai/about/saibankan/hanzi
_itiran; see also O’Brien & Ohkoshi, supra note 17, at 57 tbl.3.3 (reporting figures that were current
as of 1995). Justices who had pursued multiple careers prior to their appointment to the Court, such
as Itsuo Sonobe, were classified according to their occupation at the time of their appointment, as
identified by the Court’s website. See Miyazawa, supra note 22, at 54–55 (describing Sonobe’s
varied career).
178. The statistical tests performed were a one-way analysis of variance covering all five
groups of justices—namely, former judges, former attorneys, former bureaucrats, former
prosecutors, and former professors—(F = 4.31; p < 0.01), and two-sample t-test comparisons of
former attorneys against former judges (p < 0.01) and former professors (p < 0.01).
179. This conclusion is based on two-sample t-test comparisons of former professors against
former judges (p = 0.69), former bureaucrats (p = 0.63), former prosecutors (p = 0.68), and former
lawyers (p < 0.01). The data included fifty-five former judges, forty-four former lawyers, fourteen
former bureaucrats, thirteen former prosecutors, and twelve former professors.
180. Interview with Justice A, supra note 17.
181. Id.
182. Id.
1576 Texas Law Review [Vol. 87:1545
This justice’s inside account directly supports the argument made by
Ramseyer and his co-authors that the appointment of justices to short terms
of office has constituted a deliberate strategy for the exercise of political and
ideological control over a court whose members are difficult to remove.183
Such a strategy curtails both the likelihood that a justice will drift ideologi-
cally over time, and the cost of deviance by any particular judge. Unlike the
Republican or Democratic Party in the United States, the LDP can reasona-
bly expect to be in power most, if not all, of the time.184 American political
parties have an incentive to appoint younger Justices, they argue, as insur-
ance against the possibility that a competing party will acquire power and fill
a judicial vacancy with someone who is likely to be worse.185 This strategy
runs the risk, however, that a Justice will behave unexpectedly from the out-
set or shift ideologically over time.186 By contrast, because the LDP has little
reason to worry that another party will fill future vacancies with liberal
jurists,187 it can instead pursue a strategy of appointing justices who are
183. RAMSEYER & ROSENBLUTH, supra note 3, at 144, 153; J. Mark Ramseyer & Eric B.
Rasmusen, Why Are Japanese Judges So Conservative in Politically Charged Cases?, 95 AM. POL.
SCI. REV. 331, 333 (2001).
184. See Ramseyer & Rasmusen, supra note 183, at 333 (“From 1955 to 1993, the LDP
maintained steady control over the Diet and could rationally expect that situation to continue.”);
infra note 187 (discussing the LDP’s immediate prospects for remaining in power).
185. See Ramseyer & Rasmusen, supra note 183, at 333 (“Given the frequent political turnover
in America, U.S. presidents try to stack the Supreme Court with relatively young justices to take
advantage of lifetime tenure.”).
186. See R
AMSEYER & ROSENBLUTH, supra note 3, at 153 (referring to the “risk of the Earl
Warren type of agency slack: the chance that a politically reliable appointee will shift, over time, to
very different positions”); Lee Epstein et al., Ideological Drift Among Supreme Court Justices:
Who, When, and How Important?, 101 NW. U. L. REV. 1483, 1486 (2007) (documenting the extent
of ideological drift on the U.S. Supreme Court).
187. Recent opinion polls suggest that the LDP is in danger of losing power for only the second
time in over fifty years. Japan’s Crashing Economy: Cold Medicine, ECONOMIST, Feb. 21, 2009, at
44. In a number of ways, however, the LDP’s main opposition, the Democratic Party of Japan
(DPJ), behaves less like a genuine opposition party than a rival faction of the LDP: indeed, the
current head of the DPJ is himself a former LDP chieftain who broke away as a result of internal
party politics. See CURTIS, supra note 3, at 71 (discussing the intraparty power struggles that led to
Ichiro Ozawa’s departure from the LDP). On matters of substantive policy, it is difficult to
distinguish the DPJ from the LDP. Id. at 194; see also Craig Martin, The Case Against “Revising
Interpretations” of the Japanese Constitution, ASIA-PAC. J.: JAPAN FOCUS, http://japanfocus.org/-
Craig-Martin/2434 (noting that both the LDP and DPJ favor dilution of the pacifist provisions of
Article 9). Consequently, even if the DPJ takes power, it is unlikely either to upset the LDP’s
central policy achievements—including, most notably, the expansion and strengthening of Japan’s
military capabilities—or to induce a dramatic ideological shift by the courts. Cf. C
URTIS, supra
note 3, at 197–98 (describing how, upon taking power, the Socialists abandoned their traditional
positions on the constitutionality of the Self-Defense Forces and the desirability of Japan’s security
arrangements with the United States); Ramseyer, supra note 145, at 1573–81, 1577 tbl.2, 1582 tbl.3
(finding that the Socialist government that held power briefly during the early 1990s attempted
neither to overcome the “anti-leftist bias” of the lower courts nor to appoint “transformative
justices” to the SCJ).
2009] The Anatomy of a Conservative Court 1577
bound to retire in the near future.188
Justice Hidari’s limited opportunity to reshape the court’s constitutional
jurisprudence will be further curtailed by the fact that constitutional-impact
litigation, of the type brought by plaintiffs equipped and determined to secure
legal change, is relatively rare in Japan, even at the level of the Supreme
Court.189 As one justice observed of his colleagues, the relative infrequency
of genuine constitutional litigation, combined with the shortness of tenure on
the Court, means that “by the time they get confidence in constitutional
cases, they have to retire.”190
B. Time Constraints—Part II: The Crushing Workload
But surely, Justice Hidari might think, there is a silver lining to this
news: does the dearth of constitutional litigation not imply that he will have
more time and energy to focus upon the cases that do come along and to
make the most of each? It does not. This is the other sense in which Justice
Hidari will lack the time he needs to accomplish his goals: the workload of
the Japanese Supreme Court is nothing short of overwhelming. In 2006,
7,180 new civil and administrative cases and 4,293 criminal cases were
added to its docket.191 Thus, its total docket is not unlike that of the U.S.
Supreme Court in size.192 Unlike the U.S. Supreme Court, however, the
Supreme Court of Japan has very little discretion to refuse to decide a case.193
Legislation was enacted in 1996 to render its civil docket partly
discretionary, but these reforms were both incomplete and ineffectual, and
there have been no corresponding reforms on either the criminal or the
administrative side.194 To make matters worse, criminal appellants can and
routinely do raise time-consuming factual challenges to their convictions on
appeal to the SCJ.195
188. See Ramseyer & Rasmusen, supra note 183, at 333 (observing that, insofar as the LDP
expects to remain in power, its leaders can “afford to appoint justices old enough . . . not to change
their views before mandatory retirement”).
189. HIDENORI TOMATSU, KENPŌ SOSHŌ [CONSTITUTIONAL LITIGATION] 416–17 (2d ed.
2008); Interview with Justice E, supra note 174.
190. Interview with Justice E, supra note 174.
191. Hamada, supra note 117, at 24.
192. See O’Brien & Ohkoshi, supra note 17, at 41 (making the point that the SCJ’s docket “is
as large as that of the U.S. Supreme Court, yet in a country with less than half of the population of
the United States”).
193. See Haley, supra note 2, at 105 (noting that, unlike its American counterpart, “the
Supreme Court of Japan does not exercise any significant discretion over its docket”).
194. See id. (describing the effect of the Code of Civil Procedure, which became effective in
1998, on certain types of civil appeals); Interview with Judge 1, in Location Concealed (Date
Concealed) (indicating that the reforms have given the SCJ only minimal relief from docket
pressures).
195. Interview with Judge 1, supra note 194 (discussing the shokken hatsudō procedure, which
translates roughly as review for misuse of authority or abuse of discretion); Interview with
Justice B, supra note 17 (lamenting the abundance of fact-driven appeals that the SCJ is required to
1578 Texas Law Review [Vol. 87:1545
The net result is that the Supreme Court of Japan decides in the
neighborhood of ten thousand cases per year, a significant fraction of which
can be resolved only on the basis of a review of the factual record.This
means in practical terms that, on a typical working day, each five-member
petty bench must dispose of eight to ten cases per day; ten is the more
appropriate figure if one assumes, as one justice indicated, that the Court
works approximately three hundred days per year.196 Approximately half of
these cases receive actual discussion,197 which can be time-consuming: even
easier cases may require one or two hours of discussion, and it is not uncom-
mon for the members of a petty bench to spend five or six hours discussing a
difficult case.198 Grand bench cases require even more time, owing not only
to the difficulty and importance of such cases but also to the sheer number of
justices involved. 199 When discussion is deemed unnecessary, the petty
benches save time by deciding cases via correspondence,200 and the chōsakan
provide much-needed assistance by preparing vast numbers of boilerplate
dispositions.201 Even with the help of such coping mechanisms, however, the
SCJ’s workload remains staggering when compared to that of other courts.
By way of comparison, in 2006, the U.S. Supreme Court decided sixty-eight
cases,202 while the Supreme Court of Canada decided fifty-nine cases.203
Remarkably, the SCJ manages to decide approximately 98% of all civil
and criminal cases within two years of filing.204 Its administrative cases,
however, tend to drag out much longer: only 89% are decided within two
years, and that rate has declined in recent years.205 The Court has in recent
years increased the number of gyōsei chōsakan—namely, law clerks who
specialize in administrative cases—but it has been unable to keep pace with
the rising size and complexity of its administrative docket.206 A number of
justices observed that case overload makes it difficult for the SCJ to give
handle); see also Hamada, supra note 117, at 28 (noting that the SCJ typically receives, and must
review, a more extensive record on appeal than its American counterpart does).
196. Interview with Justice D, supra note 59; see also Interview with Judge 5, supra note 32
(suggesting that the number of working days on the SCJ’s calendar may be closer to 250, after
allowing for national holidays and the possibility of summer vacation).
197. Interview with Justice D, supra note 59.
198. Interview with Justice B, supra note 17.
199. Id.
200. Interview with Justice D, supra note 59.
201. Interview with Justice A, supra note 17.
202. RICHARD A. POSNER, HOW JUDGES THINK 299 (2008); see also ARTEMUS WARD &
DAVID L. WEIDEN, SORCERERS APPRENTICES: 100 YEARS OF LAW CLERKS ON THE SUPREME
COURT 25 fig.1.1 (2006) (graphing the Court’s caseload up to 1994).
203. Supreme Court of Canada, Cases Decided in 2006, http://www.thecourt.ca/decisions-2006.
204. Hamada, supra note 117, at 25.
205. Id.
206. See id. (noting that the percentage of administrative cases decided by the SCJ within two
years actually declined between 2000 and 2005, despite the introduction of additional gyōsei
chōsakan).
2009] The Anatomy of a Conservative Court 1579
adequate attention to constitutional questions when they do emerge.207 These
docket pressures pose an obvious challenge for Justice Hidari: if he is to steer
the course of Japanese constitutional jurisprudence to the left, he will need to
find the time both to identify worthwhile cases and to give them the attention
they deserve. But time is a commodity that he will not have.
C. Manpower Constraints: Independent Clerks, Dependent Dissenters
Justice Hidari might not consider these obstacles insurmountable. Even
if he is in the numerical minority, he might strive to sway his colleagues by
authoring richly persuasive opinions of his own. Failing that, he might aim
to leave behind an intellectual legacy of influential concurring and dissenting
opinions upon which future litigants and jurists might build. To do so in the
face of a crushing workload and imminent retirement, however, he will need
help—and lots of it, given that a justice who wishes to write a separate opin-
ion has only three weeks to one month in which to do so.208 There is one
obvious way in which Justice Hidari might hope to deal with the simultane-
ous pressures of too few allies, too many cases, and too little time—namely,
the time-honored American tradition of relying upon one’s law clerks.
Except, of course, that this is Japan, and Justice Hidari therefore has no
law clerks of his own. The chōsakan are not hired by, and do not work for,
specific justices. Instead, as noted previously, they are successful career
judges handpicked by the General Secretariat to work for the Court as a
whole.209 They are, as Hiroshi Itoh observes, “among the most able career
judges of ten to twenty years of experience and expertise as trial judges,”
whereas the justices themselves are of “relatively advanced ages,” face a
“very heavy workload,” and in many cases “have little prior judicial
experience.”210 Moreover, chōsakan typically serve for at least three years,211
which means in practical terms that they may have more experience at the
Court than many of the justices. In short, the chōsakan are unlikely to feel
especially cowed by, or indebted to, the justices whom they nominally serve.
The chōsakan system is in many ways a rational response to the
caseload pressures that the Court faces. At present, the Court has thirty-
seven chōsakan.212 They are divided by substantive expertise into groups:
seventeen specialize in civil law, ten specialize in criminal law, and nine
specialize in administrative law.213 Efforts are made to ensure that a couple
207. Id. at 25; Interview with Justice B, supra note 17; Interview with Justice E, supra
note 174.
208. Interview with Justice D, supra note 59.
209. ITOH, supra note 14, at 77; O’Brien & Ohkoshi, supra note 17, at 42; supra subpart II(C).
210. ITOH, supra note 14, at 79.
211. Id. at 77; Interview with Judge 2, supra note 64; see also Interview with Judge 1, supra
note 194 (indicating that chōsakan serve four or five years on average).
212. Interview with Judge 2, supra note 64.
213. Id.
1580 Texas Law Review [Vol. 87:1545
of the civil chōsakan have experience with intellectual property matters.214
Even the justices who reported relatively frequent disagreement or some-
times difficult relations with the chōsakan described them with grudging
respect as “elite judges” who are “confident, no question of that,”215 as the
“cream of the crop” in terms of sheer “ability,”216 and so forth.
The chōsakan have a formal hierarchical leadership structure and
decision-making procedures of their own. When a case arrives at the SCJ, it
is sent to the appropriate group of chōsakan—civil, criminal, or
administrative—and the group then assigns the case to one of its members.217
At the same time, incoming cases are also assigned to one of the three petty
benches, which also divide the cases among their members.218 Thus, the
presiding justice does not determine who the corresponding chōsakan will
be. The chōsakan is responsible for preparing a jikken memo on the case that
is comparable to a bench memorandum of the type familiar to law clerks in
other countries: it includes a summary of the arguments on both sides, a sum-
mary of the facts (which can be extensive in criminal cases), an explanation
of the relevant law, and a draft opinion.219
If the chōsakan concludes that the case or the lower court’s decision
presents an important issue—for example, a potential inconsistency with SCJ
precedent or a constitutional question—he or she will call for group
discussion of the case.220 These group meetings occur at least once a month,
but the exact frequency varies according to need.221 The chōsakan’s report
will reflect the outcome of the group discussion.222 The chōsakan are led by
a shuseki chōsakan, who is their overall head, and by three jyōseki chōsakan,
one for each group.223 The shuseki chōsakan is a highly experienced judge of
thirty to thirty-five years experience in most cases.224 He or she has typically
already served as the chief judge of a district court and also as a judge on a
high court.225 Serving as shuseki chōsakan is one of the last steps, if not the
last step, on his or her way to becoming chief judge of a high court.226 The
jyōseki chōsakan is typically a judge of approximately twenty-years experi-
214. Interview with Justice B, supra note 17.
215. Id.
216. Interview with Justice D, supra note 59.
217. O’Brien & Ohkoshi, supra note 17, at 42.
218. Id.
219. Interview with Judge 1, supra note 194; Interview with Judge 5, supra note 32.
220. Interview with Judge 1, supra note 194.
221. Id.
222. See ITOH, supra note 14, at 79 (explaining that “[i]f a presiding justice feels that the case
report is insufficient or that a group discussion raises further questions to be clarified,” the chōsakan
revises the report).
223. Interview with Judge 1, supra note 194.
224. Id.
225. Id.
226. Id.
2009] The Anatomy of a Conservative Court 1581
ence who is being groomed for even greater things.227 A judge is usually
assigned to be a jyōseki chōsakan just before becoming chief judge of a dis-
trict court.228 In most cases, the shuseki and jyōseki chōsakan do not become
involved in the substantive work of the other chōsakan.229 They do,
however, lead group discussions and, in such cases, will also review the
chōsakan’s written report before it is circulated to the justices. 230 The
shuseki chōsakan also has the added responsibility of evaluating the perform-
ance of the chōsakan under him or her.231
The net result is that the chōsakan are more influential, more confident,
and more independent from the justices than their American or Canadian
counterparts. Their confidence and influence derives in large part from their
experience, talent, and professional success. Their independence from the
justices, meanwhile, derives from the fact that they possess their own leader-
ship and owe their continuing professional success and career prospects to
the General Secretariat rather than to the justices with whom they work on a
random, sporadic basis. It is also bolstered by the fact that when a justice
disagrees with a chōsakan in an important case, he is disagreeing not merely
with a single chōsakan, but with an entire group of judges who are experts in
their field and may, both collectively and individually, possess more judicial
experience than him.
This system has the effect, intentional or otherwise, of giving the
General Secretariat a measure of indirect control over the Court’s output and
jurisprudence, and of curtailing the ability of justices to deviate from the
judicial mainstream. Even justices who might themselves fairly be described
as conservative in their voting behavior or who were themselves chōsakan
acknowledge that the manner in which the chōsakan conceive of their role
causes them to be conservative.232 According to sympathetic observers, the
chōsakan consider it their responsibility to ensure that the SCJ’s decisions
are consistent with its own existing case law; they do not feel free to suggest,
and indeed discourage, departures from precedent.233 No one felt any need to
apologize for the mindset of the chōsakan, and by all indications, it is a
mindset that the General Secretariat actively values when choosing them.234
227. Interview with Judge 5, supra note 32.
228. Interview with Judge 1, supra note 194.
229. Id.
230. Id.
231. Id.; see also Interview with Judge 2, supra note 64 (explaining that the General Secretariat
confers with both the saibankan kaigi and the shuseki chōsakan when evaluating the performance of
the chōsakan).
232. Interview with Justice F, supra note 58.
233. Interview with Judge 1, supra note 194; Interview with Justice F, supra note 58.
234. See Interview with Judge 1, supra note 194 (deeming it a strength of the system that the
chōsakan ensure consistency with precedent); Interview with Justice F, supra note 58 (describing
the General Secretariat’s sense of the role that the chōsakan should play).
1582 Texas Law Review [Vol. 87:1545
More generally, it seems naive to think that the General Secretariat, the
guardian of judicial orthodoxy, pays no attention to the views of potential
chōsakan, either directly or indirectly. None of my judicial interviewees sus-
pected the General Secretariat of deliberately choosing conservative
chōsakan for the purpose of influencing the ideological direction of the court.
What seems more likely, however, is that the ideological norms of the
General Secretariat influence its selection of chōsakan in more indirect and
less explicit ways, with the result that the views of the chōsakan tend to mir-
ror those of the General Secretariat.235 As judges on an elite career trajectory,
the chōsakan have, by definition, demonstrated to the satisfaction of the
General Secretariat that they can be trusted to perform reliably, predictably,
and without any overt signs of deviancy from the ideological norm.236 To the
extent that those with firsthand knowledge were willing to discuss how the
chōsakan are chosen, they insisted that the sole selection criteria are ability
and competence, as necessitated by the intense demands of the Court’s
workload. It is more than plausible, however, that evaluation of a judge’s
ability and competence will be colored by the extent to which the judge in
question conforms to the evaluator’s own ideological views. Indeed, the
possession of a particular mindset may become part of the definition of what
it means to be competent. Likeminded senior judges may take their shared
ideological bent for granted to such an extent that their subjective views
become the benchmark of objective competence. The concepts of ability and
competence are sufficiently elastic to encompass the notion that judges ought
to think a particular way.
Imagine what is likely to happen, therefore, if Justice Hidari finds
himself presiding over a sensitive constitutional case involving, say, the
constitutionality of Japan’s naval refueling operations in support of American
military operations in Afghanistan.237 Let us assume that Justice Hidari takes
the view not only that the case is justiciable—which contradicts earlier prece-
dent to the effect that issues surrounding the interpretation of Article 9 are
nonjusticiable political questions in all but the most extreme cases238—but
also that these naval operations are unconstitutional, which places him
squarely on a collision course with the LDP. As someone who holds such a
liberal position, he is likely to have reached the Court through some route
other than a career in the judiciary; as a matter of raw numbers, he is there-
235. See Miyazawa, supra note 22, at 54 (observing that the chōsakan are likely to “share the
same perspective” as, and to behave in ways that are predictable to, the General Secretariat).
236. See Abe, supra note 22, at 314–16, 318 (arguing that Japanese judges must comply with a
norm of avoiding challenges to “the will of the political majority” if they are to rise to “responsible
positions” in the judiciary).
237. See, e.g., Craig Martin, Lessons for Japan from Canada: Establish Limits on Naval
Support to U.S., JAPAN TIMES, Jan. 10, 2008, at 15, available at http://search.japantimes.co.jp/cgi-
bin/eo20080110a1.html (describing the debate over the constitutionality of a Japanese statute
authorizing the supply of fuel to naval forces engaged in Afghanistan).
238. See supra note 12 and accompanying text.
2009] The Anatomy of a Conservative Court 1583
fore most likely to have been appointed from the bar. That means, in turn,
that he has been appointed close to retirement age. Thus, he is heavily lack-
ing in judicial experience, having in all likelihood served no more than a year
or two on the Court, yet he must make haste if he wishes to have any impact
on the Court’s jurisprudence.
The design and composition of the Court ensure that Justice Hidari will
face an uphill battle in a variety of ways. First, as a former attorney with lit-
tle or no prior judicial experience who is faced with a crushing caseload, he
will be desperately in need of highly capable help, both in preparing the
masterfully persuasive opinion that he has in mind and in dealing with his
other cases so that he can focus on the more important task at hand.
Second, it is safe to assume that the chōsakan assigned to the case will
not share Justice Hidari’s view of how it should be decided. My judicial
interviewees varied widely in their assessments of how frequently the
justices and the clerks disagree, and how severe such disagreement can be.
One chōsakan indicated that, in the presence of a major constitutional
question, a justice will “usually” disagree with at least some aspect of the
chōsakan’s report, but he further estimated that such disagreement occurred
in only one out of every hundred cases.239 By contrast, a justice with a liberal
reputation indicated that he disagreed with the chōsakan from ten to twenty
percent of the time and no more so in constitutional cases than in other types
of cases.240 Not surprisingly, those justices with a reputation for being liberal
tended to report more frequent and severe conflict with the chōsakan than
either their more orthodox colleagues or the chōsakan themselves. Although
the chōsakan are capable of exercising a more liberal influence on the
justices from time to time,241 such influence appears to be more the exception
than the rule. On the whole, it is difficult to imagine a legal position more
likely to elicit squeals of protest from a typical chōsakan than the one that
Justice Hidari proposes to take.
Third, in taking the position that Japanese naval operations abroad are
unconstitutional, Justice Hidari will be disagreeing not merely with an
individual chōsakan, but with an entire troupe of experienced, elite judges
who will almost certainly present a unanimous front. Even in the unlikely
event that the chōsakan assigned to the case sympathizes with his position,
she will be expected to flag such an important case for group discussion and
to conform her own views to those of her fellow chōsakan when she prepares
her report. Evaluation of her performance and review of her report by the
jyōseki and shuseki chōsakan will help to ensure that she does so. Anecdotal
239. Interview with Judge 1, supra note 194.
240. Interview with Justice B, supra note 17.
241. One liberal justice—who described his jurisprudential approach as greatly influenced by
the understanding of judicial review expressed in the famous footnote four of United States v.
Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), and expounded in JOHN HART ELY,
DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980)—indicated that he had been
exposed to this body of American constitutional theory by a chōsakan.
1584 Texas Law Review [Vol. 87:1545
evidence and common sense alike suggest that the prospect of having one’s
legal position unanimously rejected by a body of highly confident judges
with special expertise in the topic at hand may, in and of itself, be enough to
induce a left-leaning but overworked and perhaps also inexperienced justice
to capitulate.242
Indeed, even Justice Hidari’s fellow justices may behave in ways that
squelch his will to dissent. It appears that some of the Court’s career judges,
in particular, may frown upon an undue propensity to dissent as contrary to
the norms of the judiciary or to their understanding of how the Court is sup-
posed to decide cases. 243 One justice described an incident between a
member of the Court who was a former career judge and another who was
not.244 The justice who had been appointed from outside the judiciary chose
not to speak during the Court’s oral discussion of a particular case but simply
stated at the close of the discussion that he intended to dissent. The former
career judge was apparently unimpressed with his colleague’s unwillingness
to argue his position before publishing a dissent: having first weighed with
due regard to relevant social norms the fact that he was older than the would-
be dissenter, he told his colleague to “sit down and do your job.”245
Fourth, in the face of the collective recommendation of the chōsakan
and a bench that is stacked in favor of conservatives, Justice Hidari will
almost certainly find himself in dissent. The chōsakan will in all likelihood
present an impressive, unanimous front in support of their position, which the
inexperienced Justice Hidari may be hard-pressed to rebut persuasively
without help. The career judges on the Court, in turn, are likely to be recep-
tive to the chōsakan position, given that they share the same training,
outlook, and professional experience. The former prosecutors on the Court
will, if anything, be even more conservative. Added together, these two
groups already constitute a majority of the Court, regardless of how any of
the other justices behave.
Fifth, Justice Hidari cannot count on receiving much help from the
chōsakan—or, indeed, from any other source—in drafting his dissent. The
chōsakan assigned to a case is expected to prepare a report that anticipates
and reflects the relevant range of views and to assist in drafting the opinion
of the Court, which is in any event likely to be based upon the report.246 He
242. One of my interviewees related to me precisely such a story on a not-for-attribution basis.
A former member of the Court who was known both for his intellectual ability and liberal leanings
confided in my source that he had once told a chōsakan that he wished to decide a case against the
chōsakan’s recommendations. The clerk in question convened a full meeting of the chōsakan to
discuss the case then returned to the justice and told him: “All thirty of us think your way of
thinking is wrong.” The justice acquiesced.
243. See O’BRIEN WITH OHKOSHI, supra note 25, at 83 (observing that both “the Court’s
norms” and “the legal culture” disfavor the authorship of dissenting or even concurring opinions).
244. Interview with Justice G, supra note 14.
245. Id.
246. ITOH, supra note 14, at 78–79.
2009] The Anatomy of a Conservative Court 1585
or she is not under any firm obligation, however, to help individual justices
author separate opinions, be they concurring or dissenting. Even in the best-
case scenario, the chōsakan will at most check the “outline” and “basic
ideas” of a prospective separate opinion, according to one justice who had
himself been a chōsakan.247 Nor can Justice Hidari draw upon certain other
basic resources that dissenting judges in other countries might take for
granted. The Supreme Court of Japan rarely allows or receives amicus
briefs: the last time it did so was in a 1989 case involving the subdivision of
forestry land when it received a brief from the Ministry of Justice.248 If he is
indeed to author a separate opinion within the expected time frame of one
month or less in the face of a crushing caseload, he must attempt to fashion
what he can from the parties’ own briefs, his own hard work, and possibly
some general input from a generous chōsakan.
But the worst-case scenario is, needless to say, significantly worse.
When asked what happens in the event that they disagree with a member of
the Court, the chōsakan with whom I spoke insisted that they comply faith-
fully with the wishes of the justices and, indeed, that things could not
logically be otherwise. The justices, however, painted a more complex
picture. Some justices reported experiencing difficulty with chōsakan who
do not agree with them; others characterized the relationship as largely
harmonious. One moderately liberal justice observed that some chōsakan
could indeed be “not cooperative” but characterized his own relations with
the chōsakan as “very good” and suggested that a justice’s ability to work
productively with the chōsakan depends more upon personality than substan-
tive agreement: an “authoritative personality,” he suggested, as opposed to a
justice who merely holds liberal views, would be more likely to experience
difficulty securing the cooperation of the relevant chōsakan in the event of
disagreement.249 Another justice with a liberal reputation on certain issues
indicated that, in “exceptional cases,” the chōsakan can be “very hostile” and
may engage in deliberate foot-dragging.250 This justice alluded by way of
example to a “hideous experience” in a high-profile voting rights case but
declined to elaborate.251
Sixth, the members of the Court who are most likely to have liberal
leanings, such as Justice Hidari, are also most likely to be dependent upon
the chōsakan for help. Those justices who rose through the ranks of the ca-
reer judiciary make a habit of writing their own opinions: as one such justice
observed, it is a point of pride and “almost a tradition” for them to do so.252
The justices who most need assistance, by contrast, are likely to be those who
247. Interview with Justice A, supra note 17.
248. Interview with Masako Kamiya & Hidenori Tomatsu, supra note 46.
249. Interview with Justice C, supra note 165.
250. Interview with Justice D, supra note 59.
251. Id.
252. Interview with Justice A, supra note 17.
1586 Texas Law Review [Vol. 87:1545
lack judicial experience—namely, the former lawyers, bureaucrats, and
professors on the Court. Precisely because they have not spent their lives in
the career judiciary, however, these same justices, who are most in need of
chōsakan assistance, are also the most likely to constitute the liberal wing of
the Court. Yet, precisely because they are liberal, they cannot count upon the
chōsakan for the very assistance of which they are in the greatest need.253
In sum, the Court’s allocation of institutional resources, combined with
its organizational structure and composition, strongly favor conformity and
capitulation on the part of a would-be liberal such as Justice Hidari. The jus-
tices who are most inclined to fight the ideological current of the Court will
also be the least well-equipped to do so. From the outset, they are likely to
be underprepared, overwhelmed, and short of time in more ways than one.
They will be in the greatest need of assistance from the chōsakan but also the
least likely to receive it. Because they lack direct control over the chōsakan,
their ability to secure the assistance that they need will depend to a signifi-
cant degree upon their relations with the chōsakan. It is difficult not to
suspect, in turn, that the extent to which the relationship is harmonious will
depend at least partly upon the extent to which the chōsakan shares the
justice’s views. For the same reasons that the career judiciary is
conservative, however, a typical clerk and a liberal justice are unlikely to see
eye-to-eye. Moreover, even if the justice is fortunate enough to secure the
chōsakan’s ungrudging assistance, the actual level of assistance that he or
she can hope to receive is minimal as compared to what the judges on certain
other appellate courts in certain other countries routinely demand, and
receive, from their clerks.
IV. Conclusion: The Nature of Judicial Politics and the Impact of
Institutional Design
The conservatism of the Japanese Supreme Court illustrates two
recurring features of judicial politics. The first is that judicial politics and
253. It should be noted that neither a lack of judicial experience nor a lack of chōsakan
assistance has prevented the former law professors on the Court from being relatively prolific
dissenters. See O’Brien & Ohkoshi, supra note 17, at 57–58, 57 tbl.3.3 (finding that the Court’s
former law professors authored over a quarter of all nonmajority opinions issued between 1981 and
1993 and listing by occupation the most frequent dissenters on the Court during that time). Their
capacity for generating separate opinions with little or no help from the chōsakan is perhaps
unsurprising in light of the fact that, unlike private attorneys or bureaucrats, they are professionally
accustomed to publishing their own ideas and critiquing judicial decisions. The sole law professor
on the Court at any given time cannot be expected, however, to shoulder the burden of articulating
an alternative vision of the law on every occasion that such vision is needed. Not only the sheer
magnitude of the task, but also the internal organization of the SCJ, limit what one justice can
accomplish: a lone justice has no effective way of monitoring, much less influencing, the cases
handled by the two petty benches to which he or she does not belong.
2009] The Anatomy of a Conservative Court 1587
electoral politics cannot be decoupled.254 There is more than one way in
which the Japanese judiciary can be characterized as independent, but what-
ever judicial independence means, it cannot mean independence over the
long term from prevailing political forces. In the Japanese context, judicial
independence has meant that the courts have enjoyed the power to manage
their own personnel matters in the first instance while also escaping overt
forms of control by other political actors over the manner in which specific
cases are decided. What the courts do not possess, however, is the capacity
to pursue policies out of sync with those favored by a government that has
been in power for decades. The conservatism of Japan’s courts is the inevita-
ble result of their longtime and ongoing immersion in a conservative political
environment. There is no institutional structure or mechanism capable of
thoroughly insulating courts from politics.
Political control over judicial behavior need not be overt. Political
actors can influence a court’s behavior directly or indirectly by manipulating
the composition of the court, the resources available to members of the court,
and the range of strategic options available to the court as an institution. In
the case of the SCJ, all of these forms of influence are at work. A gauntlet of
screening mechanisms ensures that left-leaning jurists who are prepared to
strike down policies favored by the LDP are unlikely to reach the Supreme
Court,255 while the few who do reach the Court are hobbled by acute resource
constraints that make it difficult for them to steer the law in a new
direction. 256 What is perhaps most interesting about Japan from an
institutional perspective is that the LDP has, in effect, delegated much of the
task of political control to ideologically reliable agents within the judiciary
itself—namely, a cadre of senior judges centered upon the Chief Justice and
his administrative aides in the General Secretariat. The result of this deft bit
of engineering is a judiciary that amply satisfies formal criteria of judicial
independence yet remains reliably in tune with the wishes of the government.
The SCJ is further constrained by the practical difficulty of prevailing
against the government. Judicial efforts to strike down government policy
may fail or even backfire: past experience suggests that the LDP may re-
spond to an irksome constitutional decision by ignoring the decision257 or
254. See MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 20 (1981)
(“[T]he universal pattern is that judging runs as an integral part of the mainstream of political
authority rather than as a separate entity.”).
255. See supra Part II.
256. See supra Part III.
257. Last year, for example, the Nagoya High Court held that the SDF’s air support operations
in Iraq violate Article 9, but it denied relief on the ground that the plaintiffs lacked standing. The
government responded by vowing publicly to ignore the decision. See Craig Martin, Rule of Law
Comes Under Fire: Government Response to High Court Ruling on SDF Operations in Iraq, JAPAN
TIMES, May 3, 2008, available at http://search.japantimes.co.jp/print/eo20080503a1.html (quoting
Cabinet Secretary Machimura’s public statement that the government “could not accept such a court
ruling”). Nor is it only the Nagoya High Court that has met with less than complete obedience: the
SCJ has held repeatedly that Japan’s House of Representatives is unconstitutionally malapportioned,
1588 Texas Law Review [Vol. 87:1545
seeking a constitutional amendment.258 From a strategic perspective, it is
probably better for the Court to render no decision at all than to render a
decision that is disobeyed. Disobedience makes a court look ineffectual and
thus begets further disobedience. The perception that a court lacks power is
ultimately self-fulfilling.259 This fact does not appear to be lost on the
justices, one of whom likened the power of the SCJ to that of a denka no
hōtō, or “treasured sword” of legendary power that is “passed from genera-
tion to generation.”260 The sword has legendary power as long as it is left
unused on the mantelpiece, but actual use of the sword is profoundly risky:
“If you discover it doesn’t cut well . . . its value is destroyed.”261 There is a
similar paradoxical quality to the Court: the extent to which it has power
depends upon the extent to which it appears to have power. By steering
clear of potentially losing battles with the government, it avoids the appear-
ance of weakness and thus safeguards whatever power it does possess.
The institutional characteristics of the SCJ also play an important role in
shaping its behavior. Although the impact of politics on judicial behavior is
inescapable, the timing and extent of that impact can vary greatly. Even a
dog on a leash enjoys a degree of slack: it can follow faithfully, or it can drag
its heels. Likewise, the political environment defines the outer limits of what
a court can hope to accomplish, but within those limits, the court can either
facilitate or hinder the government’s efforts to make policy. The internal
organization, rules, and practices of the Court play a crucial role in determin-
ing which course it will take. The SCJ has proven more help than hindrance
to the LDP because the manner in which it is designed provides political ac-
tors with the means to reshape its behavior rapidly and dramatically. Its
structural sensitivity to political intervention demonstrates a second recurring
feature of judicial politics: the institutional characteristics of a court govern
its responsiveness to the political environment.
but the Diet has continually failed to comply with the standards set forth by the Court. See supra
note 11 (discussing both the Court’s decisions and the inadequacy of the Diet’s response).
258. See R
AY A. MOORE & DONALD L. ROBINSON, PARTNERS FOR DEMOCRACY: CRAFTING
THE NEW JAPANESE STATE UNDER MACARTHUR 320 (2002) (noting that, from the moment that the
LDP was formed in 1955, one of its “principal aims” has been revision of the postwar constitution
in a manner that would deemphasize the protection of individual rights and weaken Article 9’s
prohibition against militarization); J. Patrick Boyd & Richard J. Samuels, Nine Lives?: The Politics
of Constitutional Reform in Japan, 29 POLY STUD. 1, 17–26 (2005), available at http://www.east
westcenter.org/fileadmin/stored/pdfs/PS019.pdf (describing early efforts by the LDP to amend
Article 9); Masami Ito, Article 9 in Abe’s Sights, JAPAN TIMES, Apr. 14, 2007, available at
http://search.japantimes.co.jp/cgi-bin/nn20070414a2.html (noting that amending Article 9 has been
a goal of the LDP since the party was founded and discussing recent efforts to lay the legal
groundwork for such an amendment).
259. See David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO. L.J. 723,
778–85 (2009) (discussing how and why actual judicial power depends upon the appearance of
judicial power).
260. Interview with Justice E, supra note 174.
261. Id.
2009] The Anatomy of a Conservative Court 1589
There are two organizational characteristics in particular that are likely
to play an especially important role in determining how responsive a given
court will be. The first is the frequency with which political actors—be they
elected officials, voters, or some combination of the two—have the opportu-
nity to shape the composition of the court. In Japan, a relatively large
number of seats on the Court and a deliberate strategy of appointing justices
near mandatory retirement age have ensured a regular flow of vacancies that
give the government the opportunity to adjust and correct the ideological
direction of the Court on a relatively constant basis.262 The fact that the
justices face retention elections ought to further enhance the responsiveness
of the Court,263 but in practice, they are appointed so close to retirement age
that the retention elections are largely moot. 264 By comparison, the
opportunities for a governing majority to shape the Supreme Court of the
United States are relatively fitful and irregular. Years can go by without a
vacancy, and the opportunity to make an appointment that will actually affect
the ideological balance of the Court may not arise for more than a decade at a
time.265 As a result, there is an elevated risk that the Court will embody a
lagging average of electoral politics and attempt to impose upon today’s
governing coalition the views of yesterday’s governing coalition.266
The second characteristic is important because it interacts with the first:
it is the extent to which power within the court is centralized or diffuse.
Political actors need not engage in sustained and repeated efforts to influence
the direction of a court if power on the court itself is concentrated in the
262. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1890–91, 1883–84 tbl.2
(listing all appointments made to the SCJ from 1983 to 2005 and noting that Prime Minister
Koizumi, for example, was able to appoint a majority of its members within two years of taking
office).
263. See KENPŌ art. 79, para. 2 (“The appointment of the judges of the Supreme Court shall be
reviewed by the people at the first general election of members of the House of Representatives
following their appointment, and shall be reviewed again at the first general election of members of
the House of Representatives after a lapse of ten years, and in the same manner thereafter.”).
264. O’Brien & Ohkoshi, supra note 17, at 53–54; see also RAMSEYER & ROSENBLUTH, supra
note 3, at 152–53 (noting that the retention elections have in practice been meaningless).
265. See Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 AM. J.
POL. SCI. 231, 233 (2007) (describing and adding to a body of literature that treats appointment of
the median member of the Court as being of unusual importance because the policy outcomes that
the Court reaches will reflect the views of the median justice).
266. See, e.g., THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT 79–80
(1989) (observing that the Supreme Court tends to adopt policies favored by the general public, but
only after a four-year lag); Richard Funston, The Supreme Court and Critical Elections, 69 AM.
POL. SCI. REV. 795, 806 (1975) (arguing that the Supreme Court tends to invalidate laws during the
“lag period” after a realigning election that leaves it temporarily out of sync with the elected
branches); William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian
Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. SCI. REV. 87,
97 (1993) (finding that the Supreme Court responds on a majority of occasions to changes in public
opinion, but only after a “significant delay” of approximately five years on average). But see
John B. Taylor, The Supreme Court and Political Eras: A Perspective on Judicial Power in a
Democratic Polity, 54 REV. POL. 345, 364–68 (1992) (questioning whether the “lag period”
explanation applies beyond the New Deal Era).
1590 Texas Law Review [Vol. 87:1545
hands of a single individual who is subject to replacement at relatively fre-
quent intervals. In the present case, the concentration of power in the hands
of the Chief Justice and the General Secretariat renders the Supreme Court of
Japan capable not only of bending rapidly to the wishes of today’s
government but also of bringing the rest of the Japanese judiciary along with
it.
If management of the judiciary is left to this self-replicating clique of
judges—as it has been, for most of the past—the result will be a judiciary
that is both formally independent and highly inertial. But the way to change
its direction is simple: one need only replace the head of the mechanism, the
Chief Justice. Notwithstanding the intensely bureaucratic character of the
judiciary, it should be faster and easier for a liberal Prime Minister in Japan
to transform the Japanese Supreme Court than for a liberal President in the
United States to do the same for our Supreme Court. The most important
thing—and perhaps the only thing—that the Prime Minister need do is to
defy convention and appoint as Chief Justice someone who is unusually
young, highly energetic, very liberal, and, perhaps most importantly, has not
been recommended by the existing leadership of the judiciary.
The powers of the Chief Justice are formidable and can take effect
rapidly. In the right hands—those, say, of a Chief Justice Hidari—they
would be nothing short of transformative. To appreciate their full impact, let
us contrast the powers of a Chief Justice Hidari with those of Chief Justice
John Roberts. Chief Justice Roberts is, as they say, merely first among
equals.267 He has one equally weighted vote among nine and has the right to
speak and vote first in conference and to assign authorship of opinions if and
when he happens to be in the majority.268 He has the privilege of presiding
over impeachments269 and of flubbing the presidential oath of office.270 He
also has various administrative duties that include, not surprisingly, lobbying
Congress for more money,271 and less obviously, overseeing a number of art
museums.272 Not bad, but not the kind of stuff that should cause Justice
Stevens to turn green with envy either.
267. HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S.
SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II, at 324 (5th ed. 2008).
268. Id.; see also H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED
STATES SUPREME COURT 43–44 (1994) (documenting the order in which the Justices vote and
speak in conference).
269. U.S. CONST. art. I, § 3, cl. 6.
270. See DENIS S. RUTKUS & LORRAINE H. TONG, CONGRESSIONAL RESEARCH SERVICE, THE
CHIEF JUSTICE OF THE UNITED STATES: RESPONSIBILITIES OF THE OFFICE AND PROCESS FOR
APPOINTMENT 6 & n.26 (2005), http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-7287
(noting that the duty of administering the presidential oath of office is traditionally reserved for the
Chief Justice).
271. See id. (discussing the annual report on the federal judiciary that is prepared by the Chief
Justice).
272. See 20 U.S.C. § 76cc (2007) (designating the Chief Justice a trustee of the Joseph H.
Hirshhorn Museum and Sculpture Garden); Alan B. Morrison & D. Scott Stenhouse, The Chief
2009] The Anatomy of a Conservative Court 1591
Now picture Chief Justice Hidari. Like his American counterpart, he
has some miscellaneous responsibilities, such as that of greeting the Emperor
of Japan at the airport.273 Unlike his American counterpart, however, his in-
volvement in actual adjudication is less than that of his fellow justices: he
does not participate at all in the work of the petty benches and casts a vote
only when the grand bench convenes.274 Even then, his vote is worth less
than that of his American counterpart: it is merely one out of fifteen. To fo-
cus on his role in deciding cases, however, is to lose sight of what matters
more: his administrative powers are truly awesome. He selects trusted
subordinates to head the General Secretariat and its Personnel Affairs
Bureau.275 Together, they have the power to assign any career judge to any
court anywhere in the country—or, indeed, even to send a judge overseas—
as often and for as long as they wish.276 (By way of analogy, imagine if
Chief Justice Roberts could exile any federal district or circuit judge to sit by
designation in the District of Alaska or on the Court of International Trade as
frequently, and for as long, as he saw fit.) And if that were not enough, the
Chief Justice and his handpicked aides also decide whether, and when, a
judge will receive pay raises.277
Given enough time—and he will not have to wait long, given the
average tenure of the justices—the new Chief Justice will also be able to fill
as many as seven of the fifteen seats on the Supreme Court itself, as long as
the political winds do not shift drastically enough to place in power a govern-
ment that will veto his choices. The seats that he will be able to fill include
the six seats held by former career judges and, in all likelihood, the seat
designated for a former law professor. The four former attorneys on the
Court, meanwhile, are unlikely to resist Hidari’s coup de cour: if anything,
the bar is likely to seize the opportunity to nominate future candidates who
are even further to the left, safe in the knowledge that Hidari will embrace
rather than veto them. Thus, with relatively little time and effort, he will
have secured the votes that he needs not only to reshape the Court’s jurispru-
Justice of the United States: More than Just the Highest Ranking Judge, 1 CONST. COMMENT. 57,
61, 61–62 (1984) (listing a number of responsibilities of the Chief Justice that are “remote from
judicial administration”). On a more serious note, the Chief Justice does also have the power to
select the members of certain temporary or special-purpose tribunals, wherein lies some opportunity
for ideological manipulation. See Morrison & Stenhouse, supra, at 61; Theodore W. Ruger, The
Judicial Appointment Power of the Chief Justice, 7 U. PA. J. CONST. L. 341, 343, 391–94 (2004)
(listing the tribunals that the Chief Justice is authorized to fill and hypothesizing that conservative
Chief Justices may favor conservative judges for tribunals that perform politically sensitive tasks).
273. See Interview with Justice E, supra note 174 (describing some of the Chief Justice’s
responsibilities for matters of administration and protocol as “just ridiculous”).
274. See supra note 148.
275. Interview with Justice A, supra note 17; see supra notes 108–15 and accompanying text.
276. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1879 (summarizing the
various ways in which the powers of Japan’s Chief Justice are much greater than those of his
American counterpart).
277. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 12, 37–
38; O’Brien & Ohkoshi, supra note 17, at 48.
1592 Texas Law Review [Vol. 87:1545
dence but also to take control of the saibankan kaigi, which possesses the
formal authority to make most decisions concerning the judiciary—not that
the kaigi has ever been prone, in any event, to do more than ratify the deci-
sions of the Chief Justice and General Secretariat.278
Not least of all, among the seats that the Chief Justice can fill is his
own. In true dynastic fashion, he can anoint his successor: although the
Cabinet makes the decision,279 the Chief Justice reportedly decides whom to
recommend for the post without any input from the other justices or even his
own aides in the General Secretariat.280 This last power, if wielded wisely,
should enable the Hidari Court to perpetuate itself long after Hidari himself
has passed into the annals of history as Japan’s answer to John Marshall and
Thurgood Marshall combined.
The proposition that the government can drastically reorient the
Supreme Court and, indeed, the entire judiciary simply by giving careful
thought to its choice of Chief Justice may sound too good to be true, but it is
one that has been tested. The LDP employed precisely this tactic in the late
1960s, and it proved very effective. At that time, the SCJ handed down a
pair of controversial labor decisions that aroused the ire of conservatives.
Against LDP efforts to break the public employee unions, which were
bastions of support for the Communist Party, the Court decided the 1966 All
Postal Workers Case,281 in which it held that, in light of the Kenpō’s explicit
guarantee of the “right of workers to organize and to bargain and act
collectively,”282 public employees could not face criminal prosecution for
conduct of a type that ordinarily accompanied a strike.283 Three years later,
the Court roiled the waters again by deciding the Metropolitan Teachers’
Association Case,284 which specifically restricted the government’s ability to
prosecute the offense of incitement to an illegal strike.285
Some attributed these decisions to the influence of Justice Jirou Tanaka,
a former Todai law professor who was also widely expected to be named the
next Chief Justice.286 To the surprise of many, however, Prime Minister Sato
instead elevated Justice Kazuto Ishida, who had personal ties to the LDP and
278 . See ITOH, supra note 14, at 250–51 (discussing the formal authority and operating
procedures of the kaigi); Interview with Justice G, supra note 14 (indicating that, although the kaigi
does perform “important work,” the justices are generally too busy handling cases to manage the
judiciary via the kaigi).
279. KENPŌ art. 6, para 2.
280. Interview with Justice G, supra note 14. This justice further revealed that when he was
Secretary General, he was simply told after the fact who the next Chief Justice would be, without
any prior consultation.
281. Japan v. Sotoyama, 20 KEISHŪ 901 (Sup. Ct., Oct. 26, 1966).
282. KENPŌ art. 28.
283. Matsui, supra note 139, at 19.
284. Japan v. Hasegawa, 23 KEISHŪ 305 (Sup. Ct., Apr. 2, 1969).
285. Matsui, supra note 139, at 19–20.
286. Miyazawa, supra note 22, at 58; Interview with Masako Kamiya & Hidenori Tomatsu,
supra note 46; Interview with Yoshitomo Ode, supra note 46; Matsui, supra note 139, at 21.
2009] The Anatomy of a Conservative Court 1593
had already carved out a reputation as a conservative on the Court.287 By
1973, the SCJ had effectively overruled its earlier pro-labor decisions, and
the judiciary had embarked upon its internal campaign against Seihōkyō.288
Between the Court’s ruling in the Metropolitan Teachers’ Association Case
and its subsequent change of course, seven new justices joined the Court, and
five of those new appointees joined Ishida in overruling the earlier pair of
decisions.289 Not long thereafter—and short of mandatory retirement age—
Justice Tanaka resigned, reportedly in frustration at his inability to prevent
the Court’s sharp rightward turn.290
The Japanese judiciary may be a bureaucracy, but it is also a highly
disciplined one in which power is concentrated to an unusual degree in the
hands of one person. It is, as a result, neither resistant nor unresponsive to
political influence. By the time Kazuto Ishida retired after serving only four
years as Chief Justice, the Supreme Court of Japan was a changed institution.
There is no reason to think that history cannot repeat itself. Precisely
because the judiciary is institutionally responsive to political influence,
however, it is unlikely to change course unless the government does so as
well. Because no amount of institutional engineering can sever the connec-
tion between electoral politics and judicial politics, any enduring change in
the behavior or direction of the Court must either originate or find support at
the ballot box. If the Court is conservative, that is ultimately because the
government is conservative, and so too are a majority of the nation’s voters.
It is implausible that any judiciary could defy an ideologically aligned
government and electorate for any meaningful period of time. What the
institutional structure of the Japanese judiciary ensures is that it will bend
sooner rather than later.
287. See Abe, supra note 22, at 316 (reporting that the selection of Ishida was a deliberate
move by the Cabinet to correct the “leftist bias” of the judiciary); Miyazawa, supra note 22, at 58;
Matsui, supra note 139, at 21 & n.55 (both describing lobbying efforts made on behalf of Ishida by
Tokutaro Kimura, a former LDP justice minister); Interview with Setsuo Miyazawa, supra note 136
(noting that Kimura was Ishida’s kendo partner).
288. See O’Brien & Ohkoshi, supra note 17, at 49 (noting Ishida’s efforts to “purge the bench”
of Seihōkyō members); Matsui, supra note 139, at 20–21 (discussing Tsuruzono v. Japan (The All
Agricultural & Forest Workers Case), 27 KEISHŪ 547 (Sup. Ct., Apr. 25, 1973), and the crackdown
on Seihōkyō).
289. Matsui, supra note 139, at 23.
290. See Miyazawa, supra note 22, at 58 (describing Tanaka as “disappointed and demoralized”
at the time of his departure from the Court in 1973).
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