The Supreme Court of Japan: commentary on the recent work of scholars in the United States.

• Author: Fujita, Tokiyasu
• Position: Symposium: Decision Making on the Japanese Supreme Court

For this symposium, I was invited to serve on two panels. For Panel 2, I was asked to provide commentaries on three papers, namely: (1) John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public Trust; (1) (2) David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan; (2) and (3) John O. Haley, Is Japanese Supreme Court Conservative? (3) For Panel 6, I was asked to comment on the gap between scholarly perception and reality with respect to the Japanese Supreme Court, from the perspective of a former professor who has observed the Japanese judiciary from both the outside and the inside.

Reading the participants' papers, I have noticed that a heavy focus is placed on (1) determining the precise definition of the term "conservative," and (2) the degree to which the Japanese Supreme Court is "conservative," as the term is used among scholars. Furthermore, it has come to my attention that scholars refer to a particular image of the Supreme Court, which has frequently served as a foundation for their subsequent arguments. To address these points, I would like to discuss jointly the three papers and other related works, including Professor Daniel Foote's recent publications in 2006 (4) and 2007, (5) and to talk simultaneously about my own impressions of the Court.

It should be noted that, unlike the other individuals gathered for this symposium, I am not principally motivated by academic endeavors to verify whether these scholarly interpretations are indeed valid. Nor have I reached my conclusions by subjecting my observations to academic scrutiny. Rather, the opinions that I provide are simply based on my personal experience of serving as a Justice for seven-and-a-half years.

While my impressions have not been tested with academic rigor, my experience of transitioning from being a professor to being a Justice, and thereby influencing the present Japanese Supreme court, may in itself be of some interest to readers. it is my hope that such is the case, and it is for this particular reason that I have agreed to accept the invitation to participate in this symposium.

1. THE STEREOTYPICAL PORTRAYAL OF THE JAPANESE SUPREME COURT, AS PRESENTED IN BOTH TRADITIONAL ENGLISH AND JAPANESE WORKS

   Among the traditional literature that discusses the structure of the Japanese Supreme Court, a particular view of the Court and its functions appears widespread. This widespread image of the Court (hereafter referred to as the "Perceived Image") may be summarized as follows. Since the authority to appoint the Justices of the Supreme Court, including the Chief Justice, lies within the grasp of the government, it must be the case that the Supreme Court--at the very least--has been indirectly influenced by the political ideologies of the particular party in power. (6) This effect explains why the Supreme Court has frequently rendered decisions that appear conservative. Furthermore, the use of bureaucratic structures, and the power of the Human Resources Division of the General Secretariat to control the promotion of lower-court judges, have stripped Japanese judges of their judicial freedom. At minimum, it must be acknowledged that these bureaucratic restrictions restrain judges, restricting their abilities to function as independent decision-makers. (7)

   In order to investigate the validity of the Perceived Image, it is necessary to keep in mind the following inquiries.

   First, an investigation should be made into whether a gap exists between (1) the institutional and theoretical possibility of how the Supreme Court may function, and (2) the Court as it actually functions. Second, as a way of understanding the first consideration, it is necessary to analyze how the Court has adapted to the generational changes. To expand on this point, it is important to ask whether the generational changes have fundamentally shifted the Justices' views on what they precisely characterize as representing the societal values, as these values may be specific to particular time-periods. If such fundamental shifts have indeed taken place, a survey should also be made into the degree to which such shifts have taken place. Third, an examination into the precise meaning of the term "conservative" is necessary. Noting an absence of an analysis containing the above three inquiries, I believe that the Perceived Image has not been subjected to a rigorous enough examination to test its validity.

2. THE GAP BETWEEN THE PERCEIVED IMAGE AND THE REALITY OF THE JAPANESE SUPREME COURT

   1. Selection of New Justices

      The Japanese Cabinet is formally assigned the duties to select new Justices. Putting aside questions concerning the degree to which the Cabinet actually influences the appointment process, a ruling party may be said--in theory--to possess the potential to steer the Supreme Court's judicial course. That is, assuming that the ruling party is able to appoint Justices who are sympathetic to its political ideology, a possibility exists for the ruling party to influence, if not control, the Supreme Court's judicial course.

      The above conjecture is not entirely improbable. As a matter of fact, there may actually have been instances where the ruling party at least appeared to control the Supreme Court's decision-making capabilities. Concretely speaking, cases from the Showa 40s8 may possibly serve as examples of such occasions.

      However, this does not by itself conclusively prove that the Japanese Supreme Court has constantly been controlled, and thereby has its decision-making responsibilities compromised, by the ruling party. Rather, the concept of judicial independence has been one of the fundamental cornerstones of the Supreme Court. (9) In fact, those serving on the Court have dedicated themselves utterly to, and staked their reputations upon, (10) shielding the Court from political influence. (11) Moreover, as Professor Haley has precisely and--in my opinion--correctly pointed out, (12) it appears that Japan's political bodies have not only recognized the concept of judicial independence, but also affirmatively taken measures to display their respect for the independence of the Japanese courts.

      In Japan, Justices have traditionally been appointed after reaching the age of sixty or higher. (13) Perhaps, as a consequence, the average tenure of the Justices is comparatively shorter than those of their counterparts on the Supreme Court of the United States. (14) One possible interpretation of this practice is that the ruling party has implemented short terms of office to facilitate the replacement of Justices who fail to embrace the ruling party's political ideology.

      However, I believe that this line of reasoning prematurely infers--or perhaps hastily equates--a theoretical possibility for the state as it actually exists. Alternatively speaking, it may be said that the validity of the above criticism hinges on the assumption that the same conditions that exist in the united States also exist in Japan. In fact, I believe that the observed "minimum-age" trend simply reflects the advantages of such apractice for the Supreme Court--particularly when viewed from the perspectives of the individual Justices serving the Bench.

      Take, for instance, the following two considerations. First, for former career judges, the Supreme Court marks the final and ultimate point of their judicial careers. Second, within the Japanese judiciary, those determining judicial promotions take into account not only the merits of the judges but also the seniority of the judges undergoing their reviews.

      Based partly on these two considerations, it has traditionally been the practice for former career judges to be appointed to the Court immediately before reaching their mandatory retirement age. In this respect, appointing career judges to the Court, before they have reached the age of sixty, would upset the established seniority system that has long existed within the Japanese judiciary. And, assuming the continued implementation of the judiciary's seniority-based system, a conspicuous age-based imbalance would result if the Justices selected from other professional backgrounds (15) are appointed at a significantly younger age than their former career-judge colleagues.

      Note that the judiciary is not the only group to use a system based partially on seniority. other legal communities, including those specific to prosecutors and lawyers, likewise identify people according to their Legal Training and Research Institute (LTRI) cohort (16) and treat their cohort membership as a major factor during promotional reviews. As all of these groups form the pool from which future Justices are selected, it is possible to argue that the statistically observed minimum age simply reflects the seniority-based system that the Justices were exposed to in their prior careers.

   2. The General Secretariat's Involvement in the Appointment of Lower Court Judges (17)

      Every ten years, newly appointed judges go through a performance review that is administered by the Advisory Committee for the Lower Court Judges ("Advisory Committee"). As far as I am aware, and at least during my tenure on the Bench, the Advisory Committee's recommendations have been followed without fail. Based on these reviews, there are at least one or two individuals during each promotional cycle who are denied reappointment, having been deemed unfit to continue serving as judges.

      The reasons for the rejections are grounded solely on one or more of the following shortcomings: (1) lack of fundamental knowledge of the law, (2) lack of proper abilities to manage and oversee litigation, and (3) lack of common sense in dealing with other personnel. I would like to emphasize that these three reasons are all based on a type of conspicuous lack of judicial aptitude and are not based on politically motivated incompatibilities. Nevertheless, since the reasons for the actual dismissals are not revealed to anyone...