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8.24.2009

When Supreme Court justices attack ... each other

Imagine if Justice O'Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.

Well, that is pretty much what is happening right now in Japan.

Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.



Imagine if Justice O'Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.

Well, that is pretty much what is happening right now in Japan.

Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.

Per Article 79 of the Kenpo, Japan's postwar constitution, justices are initially appointed by the Prime Minister* but must then stand for election at the first general election following their initial appointment, and at ten-year intervals thereafter. The retention election provision has widely, and accurately, been regarded as toothless. The public does not know enough about the justices to vote in an informed manner, and the justices have always been reelected by lopsided margins. (The provision requiring reelection at ten-year intervals is especially useless: it has literally been decades since any justice was appointed at a sufficiently young age that he (and unfortunately I do mean "he," not "she") did not hit mandatory retirement at age 70 before facing a second retention election.)

Justice Tokuji Izumi, a career judge who retired from the Supreme Court earlier this year, is trying to change that, and in a very public way. Izumi–by all accounts one of the smarter judges around, and one whom I have heard praised specifically for his political savvy–is listed as one of the signatories and "originators" of a series of advertisements that have appeared in the Japanese media-including, most recently, a full-page ad in today's issue of the Asahi Shimbun, Japan's most prominent newspaper. The ads urge readers to vote against Justices Kohei Nasu and Norio Wakui on account of the positions that they took shortly after their appointment in a 2007 electoral malapportionment case, in which they were, shall we say, somewhat less than steadfast in their defense of equal voting rights for all Japanese citizens.

Electoral malapportionment has long been a thorn in the Court's side, but to make a very long story very short: (1) Japan's electoral districts have suffered from chronic malapportionment favoring rural over urban areas (actual voting disparities have on occasion topped 5:1); (2) this is one of the very few constitutional issues on which the Court has actually tried to force the government to act; and (3) the government (which, having always been controlled by the same party, has benefited from this malapportionment) has unsurprisingly failed to fix the problem.

You can get a sense of the nature of the campaign against Justices Nasu and Wakui by checking out the two cute little mascots on the home page of the organization's website (lions? tigers? leopards? See this earlier post for proof that it is absolutely mandatory in Japan for all serious political and/or legal matters to be championed by some sort of mascot.) And see those signs they're holding up? The left one is holding a sign that says, "One person, one vote." Kawai desu ne! But what's that sign that the right one is holding up? "One person, 0.6 of a vote." Oh dear, that's not so kawai now, is it. That's pretty much all the Japanese I can muster, but it's also pretty much all the Japanese you need to get the idea.

And in case you were wondering: Yes, Izumi did serve on the Court with both Nasu and Wakui. I wonder what his retirement party was like. Will they still send him Christmas cards?

On a more serious note, one might also wonder: Should any effort to discipline or remove judges for the positions that they take be considered an assault on judicial independence? Should it make a difference that the attack is, in this case, being led by a highly respected lifelong judge and former justice of the Supreme Court?

There is much more to say, but for more on the politics of the Japanese Supreme Court, the Court's dismal track record in pretty much every area of constitutional law *except* voting rights, and even a bit on Justice Izumi's turn to the left, may I somewhat selfishly suggest this article, which you can also find in print in the Texas Law Review.

Tip of the hat to Setsuo Miyazawa of Aoyoma Gakuin Law School for the heads-up. Colin Jones of Doshisha Law School is keeping an eye on this story for us, and perhaps he will have some on-the-ground reconnaissance to share with us in the coming days.

[* Technically, the Chief Justice is appointed by the Emperor on the advice of the Cabinet, and the Cabinet appoints the rest. But, as in pretty much any parliamentary system, the Prime Minister runs the Cabinet.]

9 comments:

  1. Tokujin MatsudairaAugust 25, 2009 at 7:07 PM

    Hi.
    I read your article-very interesting work but may overestimate the ideologic difference among Japanese judges.
    As to the ads, at least for me it is not so exciting. The voting right issue is beyond the partisan or ideologic line and you can find IT businessperson, corperate lawyers, partner of big law firms, former professional baseball player, political critics in the list. Most of them seem apolitical, and I see no "leftist". One of the supporters, Mr. Taro Yayama, is a famous rightist columnist.
    I think it is Mr. Masunaga, a business lawyer and partner of TMI, playing the most important role in the movement. In Japan, personal relationship, NOT political belief, is the key when you try to recruit others for this kind of movement.

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  2. Tokujin MatsudairaAugust 25, 2009 at 7:44 PM

    Just an additional comment...
    Article 79 of Japanese constitution requires justices be appointed by the Cabinet, not PM.
    The "retention election" was a compromise between GHQ-SCAP and Japanese officials. The former suggested a parliamentary approval of cabinet-appointed justices but the latter refused, claiming that the parlimentary approval contradicts the principle of separation of powers. In fact, even the retention election was reluctantly accepted by Japanese judicial bureaucrats, who considered any form of democratic control a threat to the independence of courts.

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  3. Professor Matsudaira, thanks very much for the interesting and informative comments! Technically yes, Article 79 does name the Cabinet, not the Prime Minister. And technically it is the Emperor who appoints the Chief Justice, but that too is really up to the Prime Minister. In a parliamentary system, though, including that of Japan, the Cabinet does in practice mean the Prime Minister. But I will amend the post to make that totally clear. (Incidentally, if anyone has ever heard of the Cabinet or Emperor playing an actual role in appointing justices, I would really like to hear about it!)

    It's not hard to believe that Masunaga's personal relationship with Izumi might be a factor here, but I also doubt that Izumi would have taken this position if he hadn't already done so while on the Court. Moreover, even if a personal relationship is in play, does that really make it any less remarkable that a recently retired justice is calling publicly for the defeat of two of his former colleagues? Justice Izumi's involvement in this effort is far from passive or reluctant - my understanding is that he's giving media interviews too, such as an interview this past Monday with the Asahi Shimbun.

    I think the really hard and interesting question you are raising is, why are a number of business types and even conservative figures publicly backing a campaign that, if successful, would hurt the LDP? This does puzzle me.

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  4. Tokujin Matsudaira, Hitotsubashi UniversityAugust 27, 2009 at 9:07 AM

    Dear Professor Law,
    Thanks for the comment.
    Starting from your last question. The unpopularity of LDP does not come from its conservative ideology, but its too-long monopoly of local and national politics. To be sure, for decades LDP have succeeded in benefiting groups which adapt themselves to the traditional, rural-type of social-economic system. However, by so doing it prevents young generation and new business types from enjoying their freedom of calling. Now we have an antitrust case togther with the need of generational change. I don't think the Japanese conservatives, if they are smart, will oppose to such a reform. In fact, Japanese conservative never denied the democracy per se; they want the outcome of democracy to be nationalistic.
    Moreover, the two parties share conservative traits. Some DPJ politicians are known for their rightist speeches, and the predicted victory of that party is not considered as a shift to the left.
    The voting right issue was "revived" in the Sup Ct by former Justice Hiroshi Fukuda who was a diplomat. My memory is uncertain, but it seems that he or another former justice had suggested in an interview that the possible harm to LDP did trouble some conservative judges before the 1990s.

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  5. Dear Matsudaira-san,

    Your explanation makes sense to me. But it is still surprising to see the establishment attacking itself. Maybe new business types dislike some of the biases in the LDP's policies. But do they genuinely think that the DPJ will be better to them? Isn't the alternative to the LDP even worse, from their perspective?

    I am certain you are right about what Justice Fukuda said.

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  6. Tokujin MatsudairaAugust 28, 2009 at 4:37 AM

    1)If you ask me, I will say I am skeptical about DPJ. The mainstream of the party is occupied by the old Tanaka faction which once controlled LDP until the 1990s, the middle, young politicians trained at the nationalistic "Matsushita Seikei Juku", and young bureaucrats within conservative mind. They may not harm business types but may deny the past wrong Japan did during WWII, attacking the current constitutional order as "culprit" making Japan so weak-kneed to Korea and China. However, no one knows what will really happen.

    2)I read the interview Mr. Izumi gave to the Asahi Shimbun. I don't know what portion of that interview attracts you, but my impression is that Mr. Izumi spoke of his philosophy as Sup Ct justice and was cautious not to blame his former colleagues personally for the Court's inaction as to the voting right cases. I think he is aware that the two justices are unlikely to be fired due to the campaign; what driving him is a hope that the admonishing effect of the campaign-in Japanese we say "okyu wo sueru"- will "awake" the two justices. If so, what he did is not strange, for you can see the first generation of Japanese Scp Ct justices (1950-70s) were willing to speak their own words and didn't hesitate to attack other justices' opinions.

    For my part, I was attracted to the philosophy he expressed in the interview. He talked about three fields that the courts should act over the political branches: protection of 1)spiritual freedoms; 2)operating system of democratic society; 3)isolated minorities who cannot be protected by majority vote. He said the court should apply stricter standard of judicial review in the three zones and the voting right cases fall within the scope of 2). For me this is a restatement of Justice Stone's famous footnote 4 jurisprudence. It may be odd for the US lawyers but not for us, because the mainstream of Japanese legal academic, led by Professor Nobuyoshi Ashibe in the 1970s, tried to transplant the US doctrines developped in the period of New Deal and Warren Court into Japanese constitutional jurisprudence.

    Maybe Mr. Izumi just follw what he learned from prof Ashibe, or merely relies on his experience as LLM student at HLS. Anyway, you'd better to ask the justice himself (and I am sure that you have the chance). What I can say is according to Prof. Yoichi Higuchi (who is my mentor in const law), Mr. Izumi, unlike other professional judges, was sympathetic to scholarly interpretation of const law. In that sense, I will call him a libral or moderate conservative, rather than a leftist.

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  7. Justice Stone's Carolene Products footnote 4 has surfaced before in the Japanese Supreme Court's jurisprudence. Consider for example the distinction that the Court drew for purposes of constitutional scrutiny between economic and non-economic regulation in the tax case involving the treatment of salaried versus self-employed workers. Although the Court did not expressly cite Carolene Products, the intellectual "borrowing" is pretty obvious.

    I do have to say I'm skeptical that Japanese academics have had much influence on the Supreme Court's constitutional jurisprudence in recent decades. The justices I interviewed–even the sympathetic "liberal" ones–took a very dim view of the relevance of what Japanese legal academics do. Professor Higuchi is obviously correct, though, that Justice Izumi in particular has been intellectually receptive to constitutional theory.

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  8. Query: I understand that Japanese parliamentary elections (lower and upper house) are all by write-in vote, where the voter is given a blank ballot paper and writes in the name of one candidate or one party list.

    Do judicial retention elections work the same way? Or is the voter handed a ballot with a pre-printed menu of sitting Justices' names?

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