The Anatomy of a Conservative Court: Judicial Review in Japan

In this Article, Professor David Law sheds new light on the inner workings of the Supreme Court of Japan.  The Supreme Court of Japan has been described as the most conservative constitutional court in the world, and for good reason.  One might characterize it as “conservative” in the sense of being so passive or cautious that it almost never challenges the government.  Alternatively, or in 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.  What is clear, however, is that the label fits.

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 itself—this Article offers a predominantly institutional account of why the Court has failed to take an active 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 Supreme Court of Japan.  These include the education, recruitment, and promotion of Japan’s career judges; the screening and selection of Supreme Court Justices; the resource limitations and practical 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 Supreme Court.

What these institutional structures have created, however, is not a judiciary that is necessarily or inherently conservative in ideology or 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 mechanisms 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 post-war 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.