David S. Law (Washington University School of Law; Washington University, St. Louis - Department of Political Science) has posted The Anatomy of a Conservative Court: Judicial Review in Japan (Texas Law Review, Vol. 87, 2009) on SSRN. Here is the abstract:
The Supreme Court of Japan is widely considered the most conservative constitutional court in the world, and for good reason: in over fifty years of operation, it has struck down only eight laws on constitutional grounds. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars – including seven current and former members of the Supreme Court itself – this Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan’s postwar constitution. This account of the Court’s behavior also yields a number of insights into the relationship between judicial politics and electoral politics and the role of institutional design in mediating between the two.
The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the Liberal Democratic Party (LDP), Japan’s center-right ruling party, has held power almost without interruption for half a century. Much of the LDP’s influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself–namely, the enormously powerful Chief Justice and his aides in the Court’s administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of Supreme Court law clerks, who are themselves successful career judges and exert a conservative influence on the Court.
The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Japanese Supreme Court illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensure a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the Court on an ongoing basis. Similarly, the concentration of power in the hands of a single individual who is subject to replacement at relatively frequent intervals - namely, the Chief Justice - makes unnecessary sustained and repeated efforts to influence the behavior of the Court.
One of the most interesting parts of this fascinating paper is the discussion of the role of judicial clerks. Here is an excerpt:
There is one obvious way in which Justice Hidari might hope to deal with the simultaneous 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.207 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.”208 Moreover, chōsakan typically serve for at least three years,209 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.
And:
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.230 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.231 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.232
More generally, it seems naïve 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 suspected 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 mirror those of the General Secretariat.233 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. To the extent that those with first-hand 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.234 The notions of ability and competence, however, are sufficiently elastic to encompass the notion that judges ought to think a particular way. One cannot help but suspect that many senior career judges take their shared ideological bent for granted to such an extent that they mistake their subjective views for objective competence. Likewise, it seems more than plausible that one’s evaluation of a judge’s ability and competence views.
Highly recommended!
