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87 Tex. L. Rev. 1545 (2008-2009)
The Anatomy of a Conservative Court: Judicial Review in Japan

handle is hein.journals/tlr87 and id is 1563 raw text is: 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 a paper 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 in Tokyo, 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.

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