The anatomy of a conservative court: Judicial review in Japan

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1545-1593

  Law, David S ^a  

^a WASHINGTON UNIVERSITY   (United States)

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EID: 69249123244     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (388)

1. See, e.g., DAVID M. BEATTY, CONSTITUTIONAL LAW IN THEORY AND PRACTICE 121 (1995) ("Among comparativists, constitutional review in Japan is regarded as the most conservative and cautious in the world.").
2. See, e.g., Ronald J. Krotoszynski, Jr., The First Amendment in Cross-cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech 144, 143-145 (2006) (attributing the Court's unwillingness to strike down legislation to "the Court's view of its proper institutional role" and a "lack of comfort with interposing the judiciary's will over that of elected officials").
3. John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public Trust, in LAW IN JAPAN: A TURNING POINT 99, 99 (Daniel H. Foote ed., 2007).
4. Noriho Urabe, Rule of Law and Due Process: A Comparative View of the United States and Japan, in Japanese Constitutional Law 173, 182 (Percy R. Luney, Jr. & Kazuyuki Takahashi eds., 1993) (condemning the Japanese Supreme Court as "a court so subdued as to deprive judicial review of all its significance").
5. J. Mark Ramseyer & Eric B. Rasmusen, measuring Judicial Independence: The Political Economy of Judging in Japan 9-10 (2003) [hereinafter Ramseyer & Rasmusen, Measuring Judicial Independence].
6. J. Mark Ramseyer & Frances McCall Rosenbluth, Japan's Political Marketplace 178-179 (rev. ed. 1997).
7. see also Percy R. Luney, Jr., 77;e Judiciary: Its Organization and Status in the Parliamentary System, in JAPANESE CONSTITUTIONAL Law, supra note 2, at 123, 145 (arguing that the justices, having been appointed by the leadership of the LDP, tend to "reflect the social, economic, cultural, and political values of the party membership"). The LDP has governed Japan for nearly all of the last fifty years. It briefly lost power for an eight-month period beginning in August 1993, after which time it returned to power in a short-lived coalition with the Socialist Party.
8. Gerald Curtis, The Logic Of Japanese Politics Leader Institution, And The Limit of Chang 69, 188-93 (1999).
9. JMark Ramseyer & Eric B. Rasmusen, The Case for Managed Judges: Learning from Japan After the Political Upheaval of 1993, 154 U. Pa. L. Rev. 1879, 1892-93 (2006) [hereinafter Ramseyer & Rasmusen, Managed Judges].
10. See Jun-ichi Satoh, Judicial Review in Japan: An Overview of the Case Law and an Examination of Trends in the Japanese Supreme Court's Constitutional Oversight, 41 LOY. L.A. L. REV. 603, 609 (2008) (noting that the Japanese Supreme Court has exercised the power of judicial review on only eight occasions).
11. See Judgment Days: Germany's Constitutional Court, ECONOMIST, Mar. 28, 2009, at 59 (reporting that, since its creation in 1951, the German Bundesverfassungsgericht has struck down 611 laws).
12. Aizawa v. Japan, 27 KEISHÖ 265 (Sup. Ct., Apr. 4, 1973).
13. Sumiyoshi K.K. v. Governor, Hiroshima-ken, 29 MINSHU 572 (Sup. Ct., Apr. 30, 1975).
14. Shichifuku Sangyö K.K. v. Japan, 56 MINSHU 1439 (Sup. Ct., Sept. 11, 2002).
15. Hiraguchi v. Hiraguchi, 41 MINSHU 408 (Sup. Ct., Apr. 22, 1987).
16. Jane Doe v. Japan, 62 MlNSHU 1367 (Sup. Ct., June 4, 2008).
17. Kurokawa v. Chiba Prefecture Election Control Comm'n, 30 MlNSHÖ 223 (Sup. Ct., Apr. 14, 1976).
18. Shigenori Matsui, The Reapportionment Cases in Japan: Constitutional Law, Politics, and the Japanese Supreme Court, 33 OSAKA U. L. REV. 17, 30-36, 41-42 (1986). The Japanese Diet has repeatedly failed to keep malapportionment of the House of Representatives within the limits set forth in Kurokawa. The SCJ has responded by ruling repeatedly that the apportionment scheme remains unconstitutional, but it has consistently declined to order a remedy.
19. See William Somers Bailey, Reducing Malapportionment in Japan's Electoral Districts: The Supreme Court Must Act, 6 PAC. RlM L. & POL'Y J. 169, 178-81, 184 (1997) (discussing both the Court's malapportionment decisions subsequent to Kurokawa, including Kanao v. Hiroshima Election Mgmt. Comm'n, 39 MlNSHÖ 1100 (Sup. Ct., July 17, 1985), and the ongoing inadequacy of the Diet's response), Matsui, supra, at 40, 34-35 (noting the "deep frustration" of many judges and commentators at the "continued failure of the Diet" to comply with the Court's legislative apportionment rulings).
20. See KENPÖ [Constitution] art. 9 ("[L]and, sea, and air forces, as well as other war potential, will never be maintained."), John O. Haley, Waging War: Japan's Constitutional Constraints, CONST. F., 2005 (Issue 2), at 18, 24-27.
21. Richard J. Samuels, Politics, Security Policy, and Japan's Cabinet Legislation Bureau: Who Elected These Guys, Anyway? text accompanying nn.15-17 (Japan Policy Research Inst., Working Paper No. 99, 2004), available at *http://www.jpri.org/publications/workingpapers/wp99.html (both describing the Court's use of the political question doctrine to render cases involving Article 9 nonjusticiable), see also id. at text accompanying n.15 (noting that "no portion of the Constitution has been more hotly contested" than Article 9 and that "no issue has been more 'political' than the constitutionality of the Self-Defense Forces").
22. In addition to the seven justices, I also interviewed two of the Supreme Court's law clerks (who, as discussed below, are themselves successful career judges on temporary assignment to the Supreme Court, see infra subpart III(C); five other current and former judges including Yasuaki Miyamoto and Haruhiko Abe, both known for their membership in the organization known as Seihōkyō (which is discussed below, see infra notes 79-92 and accompanying text); a prosecutor; and a variety of Japanese academics as acknowledged in the star footnote. For various compelling reasons, many of the interviewees must remain anonymous.
23. See HIROSHIITOH, THE JAPANESE SUPREME COURT: CONSTITUTIONAL POLICIES 24 (1989) (observing that "the process of nominating and appointing justices... remains unclear, [but] it appears that a Prime Minister and a handful of advisors, including an incumbent Chief Justice of the Court, are directly responsible for the selection of final candidates"); Interview with Justice G, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed) (indicating that the Secretary General's input "plays a role").
24. KENPÖ art. 6, para. 2.
25. Id. art. 79, para. 1.
26. See Haley, supra note 2, at 107; David M. O'Brien & Yasuo Ohkoshi, Stifling Judicial Independence from Within: The Japanese Judiciary, in JUDICIAL INDEPENDENCE IN THE AGE OF Democracy: Critical Perspectives from around the World 37, 51 (Peter H. Russell & David M. O'Brien eds., 2001) (both describing the role of retiring chief justices in choosing their replacements), see also Interview with Justice A, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed) (indicating that the Chief Justice submits two or three names to the Prime Minister), Interview with Justice B, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed) (indicating that the Chief Justice submits one or two names); Interview with Justice G, supra note 14 (indicating that the Chief Justice submits "several" names).
27. According to one of the justices I interviewed, the Cabinet (meaning the Prime Minister) did on occasion reject the Chief Justice's recommendations in the years immediately following World War II, but such rejections no longer occur. Interview with Justice A, supra note 17.
28. See Haley, supra note 2, at 100 (reaching precisely this conclusion); O'Brien & Okhoshi, supra note 17, at 46 (same).
29. See infra subpart 11(D).
30. Interview with Justice G, supra note 14.
31. See ITOH, supra note 14, at 251-52; Masaki Abe, The Internal Control of a Bureaucratic Judiciary: The Case of Japan, 23 INT'L J. SOC. L. 303, 311-312 (1995);
32. Setsuo Miyazawa, Administrative Control of Japanese Judges, 25 KOBE U. L. REV. 45, 48 (1991) (all discussing the leadership structure and organization of the General Secretariat); infra subparts 1I(B)-(C) (discussing the power of the General Secretariat over the training, hiring, promotion, and assignment of judges).
33. Interview with Justice G, supra note 14.
34. See infra notes 138-143 and accompanying text.
35. See DAVID M. O'BRIEN WITH YASUO OHKOSHI, TO DREAM OF DREAMS: RELIGIOUS Freedom and Constitutional Politics in Postwar Japan 77 (1996) (noting that every Chief Justice in the 1980s and 1990s rose through the ranks of the judiciary and, in particular, the General Secretariat), Haley, supra note 2, at 107 (noting that all but four of Japan's chief justices have been career judges); Miyazawa, supra note 22, at 47 (deeming it an "established custom" for five or six justices to be selected from the career judiciary, the Chief Justice among them).
36. Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1884, 1883-1884 tbl.2 (listing the professional background of every appointee to the Court from 1983 through 2005 and noting that, since 1973, every Chief Justice has been a former lower-court judge).
37. By statute, lower-court judges must retire at age sixty-five and members of the SCJ at age seventy. Saibansho ho [Court Act], Law No.59 of 1947, art. 50, translated in 2 EHS LAW BULL. SER. no. 2010 (2005), see also infra subpart III(A) (discussing the deliberate appointment of justices near retirement age).
38. See Setsuo Miyazawa, Law Reform, Lawyers, and Access to Justice, in JAPANESE BUSINESS Law 39, 46 (Gerald Paul McAlinn ed., 2007) (discussing the low Japanese bar-passage rate prior to 1990).
39. Ramseyer & Rasmusen, Measuring judicial Independence, supra note 3, at 8; Abe, supra note 22, at 306.
40. The reduced one-year training period applies to graduates of the newly created law schools. Others must attend an additional four to six months of classroom training at the LTR1. E-mail from Setsuo Miyazawa, Professor, Aoyama Gakuin Law School, to David S. Law, Professor, Washington University in St. Louis (Mar. 1, 2009, 14: 29: 30 CST) (on file with author); E-mail from Norimitsu Shirai, 2008 Keio Law School Graduate, to David S. Law, Professor, Washington University in St. Louis (Mar. 1, 2009, 19: 57: 39 CST) (on file with author).
41. Supreme Court of Japan, The Legal Training and Research Institute of Japan, *http: //www.courts.go.jp/english/instirute/institute.hrml.
42. Interview with Lawrence Repeta, Professor, Omiya Law School, in Tokyo, Japan (July 4, 2008).
43. Interview with Judge 5, in Location Concealed (Date Concealed); Supreme Court of Japan, supra note 30.
44. See Setsuo Miyazawa, The Politics of Judicial Reform in Japan: The Rule of Law at Last?, Asian-Pac. L. & Pol'Y J. (Special Issue), Spring 2001, at 89, 112 (noting the careful selection of judges to be LTRI instructors); Interview with Judge 4, in Location Concealed (Date Concealed). The selection of LTRI instructors is formally the responsibility of the justices' conference, or saibankan kaigi, but is performed in practice by the General Secretariat. Abe, supra note 22, at 306; see also infra notes 107, 278 and accompanying text (noting the discrepancy between the formal powers and the actual work of the saibankan kaigi).
45. Miyazawa, supra note 22, at 112.
46. Id.; see also Interview with Judge 5, supra note 32 (confirming the existence of the hiring preference for younger judges).
47. Miyazawa, supra note 22, at 112.
48. Interview with Judge 3, in Location Concealed (Date Concealed); Interview with Judge 4, supra note 33; Interview with Judge 5, supra note 32; see also Toshihiro Kanatani, Yonjū-go Nenkan no Saibankan Seikatsu wo Furikaette [Forty-five Years of Judge's Work in Retrospect], 45 KINKI U. L. REV. 101, 108 (2006) (noting autobiographically that the example set by the author's LTRI civil- and criminal-adjudication instructors fostered the author's interest in a judicial career, which led ultimately to his appointment to the SCJ).
49. Interview with Judge 3, supra note 37; Interview with Judge 4, supra note 33; Interview with Judge 5, supra note 32.
50. Daniel H. Foote, Recent Reforms to the Japanese Judiciary: Real Change or Mere Appearance?, 66 Hō-Shakaigaku [SOCIOLOGY L.] 128, 146 (2007); Interview with Justice A, supra note 17.
51. Interview with Justice A, supra note 17.
52. Id.
53. Id.; see also Abe, supra note 22, at 307 (reporting that the instructors usually succeed at dissuading trainees they deem "not suitable" from applying for judgeships).
54. Interview with Justice A, supra note 17.
55. Id.
56. Id.
57. See, e.g., Foote, supra note 39, at 143 (noting that the government's own Justice System Reform Council has called for greater transparency in the hiring process for lower-court judges); see also Interview with Takao Tanase, Professor, Chuo Law School, in Tokyo, Japan (June 26, 2008) (arguing in favor of greater openness in the judicial hiring process); Interview with Masako Kamiya & Hidenori Tomatsu, Professors, Gakushuin University Law School, in Tokyo, Japan (June 27, 2008) (same); Interview with Yoshitomo Ode, Professor, Tokyo Keizai University & Former Chair, Seihōkyō, in Tokyo, Japan (Aug. 6, 2008) (criticizing the lack of transparency and speculating about its causes).
58. Foote, supra note 39, at 143 (discussing the creation and activities of the Kakyū̄ saibansho saibankan shimei shimon iinkai, or "Lower Court Judge Designation Consultation Commission"); Miyazawa, supra note 27, at 86-87 (discussing the same body but translating its name as the "Advisory Committee on the Nomination of Lower Court Judges"), Japanese judges are initially hired for a ten-year term at the rank of assistant judge, after which they are, almost without exception, either reappointed as full judges or persuaded not to seek reappointment. Reappointment occurs at ten-year intervals thereafter until the mandatory retirement age established by statute, which is sixty-five for lower-court judges and seventy for members of the Supreme Court. Saibansho Ho [Court Act], Law No.59 of 1947, art. 50; O'Brien & Ohkoshi, supra note 17, at 46; Interview with Judge 5, supra note 32.
59. Interview with Committee Source, in Tokyo, Japan (June 27, 2008).
60. Id.
61. Foote, supra note 39, at 150-51; Interview with Committee Source, supra note 48.
62. Foote, supra note 39, at 146-150.
63. Id. at 151; Interview with Committee Source, supra note 48.
64. Interview with Committee Source, supra note 48.
65. Id.
66. Id.
67. See infra notes 125-128 and accompanying text.
68. Interview with Secretary to Justice F, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed).
69. Interview with Justice F, Current of Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed).
70. Interview with Justice D, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed).
71. Id.
72. See Frank K. Upham, Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary, 30 LAW& SOC. INQUIRY 421, 453 (2005) ("[E]ven readers more familiar with the bureaucratic judiciaries of the civil law world will'be surprised by the personnel manipulation and unrelenting supervision of the Japanese judicial system.").
73. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 10-12
74. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1887 (noting that the moves expected of Japanese judges "can be, and often are, from one end of Japan to the other, " as well as between different types of courts), Interview with Haruhiko Abe, Attorney & Retired Judge, in Tokyo, Japan (July 16, 2008) (describing how the General Secretariat, displeased by his rulings in politically sensitive cases, responded to his preference for criminal cases by assigning him repeatedly to family courts).
75. see also Takuya Asakura, A Judiciary Ruled by Conscience or Politics?, Japan TIMES Online, June 22, 2002, *http: //search.japantimes.co.jp/cgi- bin/nn20020622 a9.html (noting that, even as a family court judge, Haruhiko Abe was denied the opportunity to handle juvenile crime cases). Technically speaking, the law provides that a judge may refuse to be transferred against his own will, Saibansho Ho [Court Act], Law No. 59 of 1947, art. 48, but as a practical matter, judges have little choice but to either comply or resign.
76. See Ramseyer & Rasmusen, Measuring Judicial Independence, See, supra note 3, at 10-11 (noting that a judge refuses a transfer "at his peril" and risks denial of reappointment by doing so); Miyazawa supra note 22, at 48 (explaining why the formal statutory protection against involuntary transfers is not as effective as it might appear).
77. Interview with Judge 2, in Location Concealed (Date Concealed); Interview with Judge 3, supra note 37.
78. Colin P.A. Jones, Japan's Crazy Judges, 25 J. JAPANESE L. 269, 271 (2008) (book review); Interview with Justice G, supra note 14.
79. The hypothetical elite career track described here is an amalgam of the biographies of various justices and the accounts given by other scholars, all of which are consistent with one another. See, e.g., JOHN OWEN HALEY, THE SPIRIT OF JAPANESE LAW 118-121 (1998).ITOH, supra note 14, at 254-55; O'BRIEN WITH OHKOSHI, supra note 25, at 71-75.
80. Setsuo Miyazawa & Hiroshi Otsuka, Legal Education and the Reproduction of the Elite in Japan, ASIAN-PAC. L. & POL'Y J., June 2000, at 2: 1, 2: 22-24.
81. tbl.27; Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1887-1889, 1901, 1905-1906
82. See ITOH, supra note 14, at 79 (observing that chōsakan tend to be among the most able and influential judges of their cohort).
83. See infra subpart III(C) (discussing the responsibilities of the shuseki and jyōseki chōsakan).
84. See Samuels, supra note 12 (describing the responsibilities, influence, and prestige of the Cabinet Legislation Bureau).
85. See Ramseyer & Rasmusen, Measuring Judicial Independence, supra note 3, at 20 ("The Secretariat maintains a long-standing rule that judges stationed to either Hokkaido or Okinawa (the two points farthest from Tokyo) will spend their next post in Tokyo.").
86. See ITOH, supra note 14, at 254-55 (discussing the career patterns of "elite" judges); Ramseyer & Rasmusen, Measuring Judicial Independence, supra note 3, at 13 (summarizing the favorable treatment given to "fast-track judges").
87. ITOH, supra note 14, at 254; Miyazawa, supra note 22, at 49; Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1905-10, 1912-1913
88. See, e.g., ITOH, supra note 14, at 254-55; Haley, supra note 2, at 102-05; Miyazawa, supra note 27, at 48-49 (all discussing the power and prestige that attach to administrative positions in the General Secretariat, particularly those pertaining to personnel matters).
89. See ITOH, supra note 14, at 26 (observing that serving as Secretary General, then as chief judge of a major high court, seems almost to ensure subsequent appointment to the Supreme Court), Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1884-1885 (noting that a disproportionate number of justices appointed from the lower courts have worked in the General Secretariat or served as Secretary General).
90. see also O'BRIEN WITH OHKOSHI, supra note 25, at 77 (noting that every person to be appointed chief justice in the 1980s and 1990s had previously served as chief of one or more bureaus of the General Secretariat, if not as Secretary General).
91. See RAMSEYER & RASMUSEN, Managed Judges, supra note 3, at 1883-1884 tbl.2 (listing the age of every justice appointed from 1983 through 2005);
92. supra note 26 (discussing the mandatory retirement age).
93. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 15 (suggesting that prime ministers deliberately appoint older justices to avoid the "Harry Blackmun problem");
94. O'BRIEN & OHKOSHI, supra note 17, at 53-55 (noting empirical evidence of a bias against younger candidates and positing that this bias may have the effect of curtailing independent behavior on the bench);
95. infra text accompanying notes 175-190 (discussing the deliberate preference for appointing law professors who are already close to retirement age).
96. See O'BRIEN & OHKOSHI, supra note 17, at 53-55, 54 tbl.3.2 (indicating that, since the 1940s, Supreme Court justices have served an average of 6.31 years).
97. In recent years, on the advice of its judicial appointments review committee, see supra notes 47-52 and accompanying text, the SCJ has declined to recommend a small number of judges, on the order of perhaps three to five per year, for reappointment by the Cabinet. Interview with Judge 5 supra note 32;
98. Interview with Committee Source, supra note 48;
99. see also Foote supra note 39, at 152-153 (noting that, in its first three years of operation, the committee deemed a total of fourteen judges unsuitable for reappointment).
100. Prior to the creation of the committee in 2003, only two judges had ever been denied reappointment. Foote, supra note 39, at 153.
101. See Miyazawa, supra note 22, at 48 (noting the Supreme Court's admission that Miyamoto's membership in Seihōkyō played a role in his dismissal); infra notes 85-93 and accompanying text.
102. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 23 (discussing how one Seihōkyō member, Toshio Konno, resigned upon hearing that the General Secretariat would not reappoint him at the end of his term as assistant judge);
103. Haley, supra note 2, at 103 ("[A] few others may have resigned in anticipation that they would be terminated if they did not.").
104. Miyazawa, supra note 22, at 48;
105. Interview with Haruhiko Abe, supra note 63.
106. Haley, supra note 2, at 126.
107. See, e.g., O'BRIEN WITH OHKOSHI, supra note 25, at 74 (noting that "[j]udges who are too independent or too liberal" tend to be kept at a lower pay grade and assigned to less prestigious courts and less desirable locations);
108. Upham, supra note 61, at 424 ("No one disputes that the Secretariat closely monitors judges' performance for both competence and political reliability.").
109. E.g., O'BRIEN WITH OHKOSHI, supra note 25, at 75-76;
110. RAMSEYER & RASMUSEN, Measuring Judicial Independence, supra note 3, at 19-25, 37-43, 162-70;
111. Haley, supra note 2, at 121;
112. Miyazawa, supra note 22, at 55.
113. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 19 (translating the name of the organization as the Young Jurists League);
114. Miyazawa, supra note 22, at 55-57 (translating its name as the Young Lawyers Association).
115. Interview with Yasuaki Miyamoto, Legal Aid Attorney & Retired Judge, in Hachioji, Japan (July 14, 2008);
116. Interview with Yoshitomo Ode, supra note 46.
117. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 18-19.
118. Id. at 19.
119. HlROSHI ITOH & LAWRENCE WARD BEER, THE CONSTITUTIONAL CASE LAW OF JAPAN: SELECTED SUPREME COURT DECISIONS, 1961-1970, at 16-17 (1978).
120. Id. at 17.
121. See RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 23-24 (noting the success enjoyed by a handful of former Seihōkyō members, including Machida).
122. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 41-47.
123. But see Kentaro Fukumoto & Mikitaka Masuyama, Judging Political Promotion of Judges: Survival Analysis, Split Population Model and Matching Method 12-13 (2006) (unpublished manuscript, on file at *http: //www-cc.gakushuin.ac.jp/~e982440/research/FKMM-APSA06.pdf) (applying split-population survival analysis and matching techniques to the data analyzed by Ramseyer and Rasmusen and finding no statistically significant evidence that judges who belonged to Seihōkyō were promoted more slowly to prestigious administrative positions).
124. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, Supra note 3, at 60-61, 80-81.
125. O'BRIEN WITH OHKOSHI, supra note 25, at 74.
126. Judges stationed in certain urban areas are eligible for a potentially hefty salary supplement that phases out two years after the judge's departure from the area in question. Interview with Judge 5, supra note 32.
127. Interview with Judge 3, supra note 37.
128. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 12;
129. Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1887;
130. Interview with Judge 3, supra note 37.
131. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 12;
132. Interview with Judge 3, supra note 37.
133. Interview with Justice F, supra note 58. As a formal matter, judges are free to reject reassignment, but as a practical matter, such reassignments are a requirement of the job, and a judge who refuses to accept a routine transfer runs the risk of being denied reappointment at the expiration of his or her ten-year term.
134. See supra note 63 and accompanying text.
135. Interview with Justice A, supra note 17.
136. Id.
137. Id.
138. see also Miyazawa, supra note 22, at 49-50 (describing the usual justifications given for the preferential assignment of certain judges to more desirable courts and locations).
139. Interview with Justice A, supra note 17.
140. Even after controlling for differences in productivity as measured by each judge's output of opinions, Ramseyer and Rasmusen find that "leftist" judges fare worse in their careers.
141. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 80-81.
142. The validity of this finding, however, has been questioned on methodological grounds. See Fukumoto & Masuyama, supra note 92, at 12 (arguing that Ramseyer and Rasmusen's analysis is based on inaccurate data, fails to account for time dependence, and critically depends on their model's misspecification).
143. See, e.g., O'BRIEN WITH OHKOSHI, supra note 25, at 72-76 (noting that judicial assignments and salary adjustments have been manipulated to ensure ideological conformity);
144. Abe, supra note 22, at 307-309, 318 (arguing that the General Secretariat uses its power over transfers and promotions to secure obedience to the internal norms of the judiciary);
145. Haley, supra note 2, at 121-128 (arguing that the conservatism of the Japanese judiciary is the product of strong internal discipline exerted by the conservative leadership of an autonomous judicial bureaucracy);
146. Miyazawa, supra note 22, at 52, 50-52 (arguing, and offering evidence, that Japanese judges "need tremendous courage to decide a case in the way that is likely to displease the [General Secretariat]" and that their assignments depend more upon the policy content of their decisions and their outside activities than upon their legal-reasoning skills or ability to dispose of cases efficiently);
147. supra note 92 and accompanying text (discussing the statistical findings of Ramseyer and Rasmusen regarding the fate of "leftist" judges).
148. See supra notes 61-105 and accompanying text.
149. See ITOH, supra note 14, at 250-251 (discussing the composition and operating procedures of the kaigi).
150. Interview with Shinichi Nishikawa, Professor, Meiji University, in Tokyo, Japan (Aug. 20, 2008).
151. Interview with Justice A, supra note 17.
152. Id.
153. Id.
154. Id.
155. Id.
156. Id.
157. Miyazawa & Otsuka, supra note 66, at 2: 23;
158. see also ITOH, supra note 14, at 254 (observing that "the secretaries general have predominantly been recruited from among bureaucrats in the general secretariat").
159. See infra notes 141-143 and accompanying text.
160. See Kunio Hamada, Korekara no Saikō Saibansho no Arikata ni Tsuite Zenpen [What the Supreme Court Should Be in the Future, Part One], NIBEN FRONTIER, Oct. 2007, at 23, 29 (noting that, as of October 2007, 148 justices had served on the Court);
161. infra text accompanying notes 179-182 (discussing the deliberate preference for appointing law professors who are already close to retirement age).
162. See O'Brien & Ohkoshi, supra note 17, at 54 tbl.3.2 (setting forth the number of SCJ appointments made by each of Japan's Prime Ministers);
163. Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1883-84 tbl.2 (listing all appointments to the SCJ from 1983 through 2005). Between September 2008 and February 2009, for example, four justices were appointed to the Court.
164. See Supreme Court of Japan, Justices of the Supreme Court, http://www.courts.go.jp/english/justices/index.html (providing the dates of appointment for Justices Miyakawa, Sakurai, Takeuchi, and Kanetsuki).
165. Interview with Justice B, supra note 17;
166. Interview with Justice F, supra note 58.
167. Interview with Justice F, supra note 58;
168. see also Haley, supra note 2, at 111 (indicating that "senior prosecutors" are responsible for selecting the candidates).
169. Interview with Justice F, supra note 58;
170. Interview with Justice F, supra note 58; see also Haley, supra note 2, at 111-112 (suggesting that "[njeither the chief justice nor the secretary general has any voice" in determining which prosecutors will be eligible for appointment to the Court).
171. RAMSEYER & ROSENBLUTH, supra note 3, at 158;
172. Haley, supra note 2, at 117.
173. See Miyazawa, supra note 22, at 50-51 (discussing the personnel exchange arrangement between the judiciary and the Ministry of Justice);
174. see also Yasuo Hasebe, The Supreme Court of Japan: Its Adjudication on Electoral Systems and Economic Freedoms, 5 INT'L J. CONST. L. 296, 300 (2007) (noting that the Ministry of Justice recruits heavily from the judiciary to fill "higher-ranking" positions).
175. Interview with Justice B, supra note 17;
176. Interview with Justice F, supra note 58.
177. See Haley, supra note 2, at 51 (noting the "remarkable" extent to which "left-liberal" and "[p]rogressive-reform" lawyers have dominated both national and local bar associations and influenced Japanese society at large).
178. See id. at 52 (quoting the Preamble to the 1987 Code of Attorney Ethics);
179. Japan Federation of Bar Associations, Articles of Association of Japan Federation of Bar Associations, July 9, 1949, at 2, http://www.nichibenren.or. jp/en/about/pdf/articles.pdf ("This Federation shall be the source of protection of fundamental human rights and of realization of social justice.").
180. See Haley, supra note 2, at 53-54 ("A deeply felt desire for independence or freedom from control by others motivates nearly all lawyers in Japan.").
181. Interview with Justice B, supra note 17;
182. Interview with Justice G, supra note 14.
183. Interview with Justice B, supra note 17.
184. Id.
185. Id.
186. The justice in question characterized the Tokyo Bar Association as the most liberal of the three local bar associations in Tokyo, see id., but the Tokyo Second Bar Association, having split from the other two on ideological grounds, is sometimes said to be more liberal. See E-mail from Masako Kamiya, Professor, Gakushuin University Law School, to David S. Law, Professor, Washington University in St. Louis (Mar. 10, 2009, 23: 34: 43 CST) (on file with
187. Interview with Justice B, supra note 17.
188. Id.
189. Of the twenty-six practicing attorneys appointed to the Supreme Court of Japan between 1947 and 1980, sixteen had previously served as president or vice president of a local bar association. Of these, ten hailed from the various Tokyo bar associations, two from the Osaka Bar Association, and one from each of the Nagoya and Kobe bar associations. MERYLL Dean, JAPANESE LEGAL SYSTEM 324 (2d ed. 2002);
190. see also Haley, supra note 2, at 109 ("[T]he predominance of former bar officials [among those attorneys appointed to the Supreme Court of Japan] exemplifies the influence of the bar itself rather than political leaders on which attorneys are selected to become justices.").
191. See Interview with Setsuo Miyazawa, Professor, Aoyama Gakuin Law School, in Tokyo, Japan (Aug. 7, 2008).
192. Id.
193. ITOH, supra note 14, at 24.
194. Id.
195. Shigenori Matsui, The History of the Japanese Supreme Court 6 & n.12 (June 14, 2008) (unpublished manuscript, on file with the author).
196. ITOH, supra note 14, at 24-25.
197. O'Brien & Ohkoshi, supra note 17, at 52.
198. See Supreme Court of Japan, supra note 118 (linking to biographies of the justices).
199. Interview with Justice F, supra note 58.
200. Interview with Justice B, supra note 17.
201. J. Mark Ramseyer, Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court and the Chaos of1993, 58 DUKE L.J. 1557, 1576 & tbl.l (2009).
202. See id. (noting that, in practice, even cases that are supposed to be heard by the grand bench tend be decided by the petty benches and that the grand bench has tended to publish zero to two opinions per year).
203. Interview with Justice B, supra note 17.1
204. Id.
205. see also ITOH, supra note 14, at 251 (noting that the Chief Justice "spends most of his time on judicial administration"). The current Chief Justice is a rare exception. Chief Justice Takesaki explained his recent decision to participate in petty bench deliberations on the ground that he wished to acquire firsthand knowledge of the Court's activities: unlike most of his predecessors, he had not previously served on the SCJ at the time of his appointment. Saiko NlHON K.EIZAI SHIMBUN [NIKKEI], Mar. 10 2009, at 34; E-mail from Masako Kamiya supra note 132sai Shohotei de Chokan ga saibancho ni Takesaki-shi Irei no sanka [Chief Justice Takesaki Takes the Unusual Step of Participating in Petty Bench Deliberations: Rare for Chief Justice to Participate in Petty Bench Deliberations], NlHON K.EIZAI SHIMBUN [NIKKEI], Mar. 10, 2009, at 34; E-mail from Masako Kamiya, supra note 132.
206. See supra notes 124-125 and accompanying text.
207. Id.
208. See supra notes 126, 132 and accompanying text.
209. See Interview with Justice B, supra note 17.
210. See infra section 11(D)(3).
211. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1885 (noting that five of the twelve bureaucrats to serve on the Court from 1983 to 2005 were former diplomats).
212. Interview with Justice A, supra note 17.
213. Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1885;
214. Interview with Justice A, supra note 17.
215. See Haley, supra note 2, at 108 (describing the two previous female occupants of the seat);
216. Supreme Court of Japan, Justices of the Supreme Court, http://www.courts.go.jp/english/justices/sakurai.html (providing Justice Sakurai's biography).
217. Interview with Justice B, supra note 17.
218. Id.
219. see also Interview with Justice G, supra note 14 (suggesting that Justice Fukuda might arguably be grouped with the Court's former attorneys in terms of his willingness to dissent).
220. Shingo Miyake, Wadai hanketsu erito syudo [High-Profile Judgments Issued by the Elite], NIHON KEIZAI SHIMBUN [NIKKEI], July 5, 2004, at 19, 19-20.
221. See KENPÖ art. 79, para. 1 ("The Supreme Court shall consist of a Chief Judge and such number of judges as may be determined by law. All such judges excepting the Chief Judge shall be appointed by the Cabinet.").
222. Interview with Justice F, supra note 58.
223. Id.
224. Haley, supra note 2, at 108-109
225. Interview with Justice C, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed).
226. Interview with Justice F, supra note 58.
227. Id.
228. Id.
229. Id.
230. Interview with Justice A, supra note 17.
231. Interview with Justice F, supra note 58.
232. Interview with Justice A, supra note 17;
233. Interview with Justice F, supra note 58;
234. Interview with Justice G, supra note 14;
235. Interview with Masako Kamiya & Hidenori Tomatsu, supra note 46.
236. See O'Brien & Ohkoshi, supra note 17, at 57-58 (finding that the Court's former law professors authored over a quarter of all nonmajority opinions issued between 1981 and 1993).
237. Interview with Justice E, Current or Former Member of the Supreme Court of Japan, in Tokyo, Japan (Date Concealed).
238. See O'Brien & Ohkoshi, supra note 17, at 53-54 (reporting that most justices are appointed in their sixties and that the average age of justices appointed in 1990-1995 was 64.2).
239. See id. at 54 tbl.3.2.
240. These statistics are calculated from the biographical data on all former justices that is posted on the Court's official website, which is current through the retirement of Justice Tokuji Izumi in January of 2009. Courts in Japan, http: //www.courts.go.jp/saikosai/about/saibankan/hanzi-Jtiran;
241. see also O'Brien & Ohkoshi, supra note 17, at 57 tbl.3.3 (reporting figures that were current as of 1995). Justices who had pursued multiple careers prior to their appointment to the Court, such as Itsuo Sonobe, were classified according to their occupation at the time of their appointment, as identified by the Court's website. See Miyazawa, supra note 22, at 54-55 (describing Sonobe's varied career).
242. The statistical tests performed were a one-way analysis of variance covering all five groups of justices-namely, former judges, former attorneys, former bureaucrats, former prosecutors, and former professors-(F = 4.31; p < 0.01), and two-sample t-test comparisons of former attorneys against former judges (p < 0.01) and former professors ( p < 0.01).
243. This conclusion is based on two-sample t-test comparisons of former professors against former judges (p = 0.69), former bureaucrats (p = 0.63), former prosecutors (p = 0.68), and former lawyers (p < 0.01). The data included fifty-five former judges, forty-four former lawyers, fourteen former bureaucrats, thirteen former prosecutors, and twelve former professors.
244. Interview with Justice A, supra note 17.
245. Id.
246. Id.
247. RAMSEYER & ROSENBLUTH, supra note 3, at 144, 153;
248. RAMSEYER & ROSENBLUTH, supra note 3, at 144, 153;
249. J. Mark Ramseyer & Eric B. Rasmusen, Why Are Japanese Judges So Conservative in Politically Charged Cases?, 95 AM. POL. SCI. REV. 331, 333(2001).
250. See Ramseyer & Rasmusen, supra note 183, at 333 ("From 1955 to 1993, the LDP maintained steady control over the Diet and could rationally expect that situation to continue."); infra note 187 (discussing the LDP's immediate prospects for remaining in power).
251. See Ramseyer & Rasmusen, supra note 183, at 333 ("Given the frequent political turnover in America, U.S. presidents try to stack the Supreme Court with relatively young justices to take advantage of lifetime tenure.").
252. See RAMSEYER & ROSENBLUTH, supra note 3, at 153 (referring to the "risk of the Earl Warren type of agency slack: the chance that a politically reliable appointee will shift, over time, to very different positions");
253. Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 Nw. U. L. REV. 1483, 1486 (2007) (documenting the extent of ideological drift on the U.S. Supreme Court).
254. Recent opinion polls suggest that the LDP is in danger of losing power for only the second time in over fifty years. Japan's Crashing Economy: Cold Medicine, ECONOMIST, Feb. 21, 2009, at 44.
255. In a number of ways, however, the LDP's main opposition, the Democratic Party of Japan (DPJ), behaves less like a genuine opposition party than a rival faction of the LDP: indeed, the current head of the DPJ is himself a former LDP chieftain who broke away as a result of internal party politics.
256. See CURTIS, supra note 3, at 71 (discussing the intraparty power struggles that led to Ichiro Ozawa's departure from the LDP). On matters of substantive policy, it is difficult to distinguish the DPJ from the LDP. Id. at 194;
257. see also Craig Martin, The Case Against "Revising Interpretations" of the Japanese Constitution, ASIA-PAC. J.: JAPAN FOCUS, http://japanfocus.org/-Craig-Martin/2434 (noting that both the LDP and DPJ favor dilution of the pacifist provisions of Article 9). Consequently, even if the DPJ takes power, it is unlikely either to upset the LDP's central policy achievements-including, most notably, the expansion and strengthening of Japan's military capabilities-or to induce a dramatic ideological shift by the courts. Cf CURTIS, supra note 3, at 197-98 (describing how, upon taking power, the Socialists abandoned their traditional positions on the constitutionality of the Self-Defense Forces and the desirability of Japan's security arrangements with the United States);
258. Ramseyer, supra note 145, at 1573-1581, 1577 tbl.2, 1582 tbl.3 (finding that the Socialist government that held power briefly during the early 1990s attempted neither to overcome the "anti-leftist bias" of the lower courts nor to appoint "transformative justices" to the SCJ).
259. See Ramseyer & Rasmusen, supra note 183, at 333 (observing that, insofar as the LDP expects to remain in power, its leaders can "afford to appoint justices old enough ... not to change their views before mandatory retirement").
260. HIDENORI TOMATSU, KENPO SOSHO [CONSTITUTIONAL LITIGATION] 416-17 (2d ed. 2008);
261. Interview with Justice E, supra note 174.
262. Interview with Justice E, supra note 174.
263. Hamada, supra note 117, at 24.
264. See O'Brien & Ohkoshi, supra note 17, at 41 (making the point that the SCJ's docket "is as large as that of the U.S. Supreme Court, yet in a country with less than half of the population of the United States").
265. See Haley, supra note 2, at 105 (noting that, unlike its American counterpart, "the Supreme Court of Japan does not exercise any significant discretion over its docket").
266. See id. (describing the effect of the Code of Civil Procedure, which became effective in 1998, on certain types of civil appeals); Interview with Judge 1, in Location Concealed (Date Concealed) (indicating that the reforms have given the SCJ only minimal relief from docket pressures).
267. Interview with Judge 1, supra note 194 (discussing the shokken hatsudo procedure, which translates roughly as review for misuse of authority or abuse of discretion); Interview with Justice B, supra note 17 (lamenting the abundance of fact-driven appeals that the SCJ is required to handle);
268. Interview with Justice B, supra note 17 (lamenting the abundance of fact-driven appeals that the SCJ is required to handle); see also Hamada, supra note 117, at 28 (noting that the SCJ typically receives, and must review, a more extensive record on appeal than its American counterpart does).
269. Interview with Justice D, supra note 59;
270. see also Interview with Judge 5, supra note 32 (suggesting that the number of working days on the SCJ's calendar may be closer to 250, after allowing for national holidays and the possibility of summer vacation).
271. Interview with Justice D, supra note 59.
272. Interview with Justice B, supra note 17.
273. Id.
274. Interview with Justice D, supra note 59.
275. Interview with Justice A, supra note 17.
276. RICHARD A. POSNER, HOW JUDGES THINK 299 (2008);
277. see also ARTEMUS WARD & DAVID L. WEIDEN, SORCERERS' APPRENTICES: 100 YEARS OF LAW CLERKS ON THE SUPREME COURT 25 fig.1.1 (2006) (graphing the Court's caseload up to 1994).
278. Supreme Court of Canada, Cases Decided in 2006, http://www.thecourt.ca/ decisions-2006.
279. Hamada, supra note 117, at 25.
280. Id.
281. See id. (noting that the percentage of administrative cases decided by the SCJ within two years actually declined between 2000 and 2005, despite the introduction of additional gyosei chosakan).
282. Id. at 25;
283. Interview with Justice B, supra note 17;
284. Interview with Justice E, supra note 174.
285. Interview with Justice D, supra note 59.
286. ITOH, supra note 14, at 77;
287. O'Brien & Ohkoshi, supra note 17, at 42;
288. supra subpart 11(C).
289. ITOH, supra note 14, at 79.
290. Id. at 77;
291. Interview with Judge 2, supra note 64;
292. see also Interview with Judge 1, supra note 194 (indicating that chosakan serve four or five years on average).
293. Interview with Judge 2, supra note 64.
294. Id.
295. Interview with Justice B, supra note 17.
296. Id.
297. Interview with Justice D, supra note 59.
298. O'Brien & Ohkoshi, supra note 17, at 42.
299. Id.
300. Interview with Judge 1, supra note 194;
301. Interview with Judge 5, supra note 32.
302. Interview with Judge 1, supra note 194.
303. Id.
304. See ITOH, supra note 14, at 79 (explaining that "[i]f a presiding justice feels that the case report is insufficient or that a group discussion raises further questions to be clarified, " the chosakan revises the report).
305. Interview with Judge I, supra note 194.
306. Id.
307. Id.
308. Id.
309. Interview with Judge 5, supra note 32.
310. Interview with Judge I, supra note 194.
311. Id.
312. Id.
313. Id;
314. see also Interview with Judge 2, supra note 64 (explaining that the General Secretariat confers with both the saibankan kaigi and the shuseki chosakan when evaluating the performance of the chosakan).
315. Interview with Justice F, supra note 58.
316. Interview with Judge I, supra note 194; Interview with Justice F, supra note 58.
317. See Interview with Judge 1, supra note 194 (deeming it a strength of the system that the chōsakan ensure consistency with precedent); Interview with Justice F, supra note 58 (describing the General Secretariat's sense of the role that the chosakan should play).
318. See Miyazawa, supra note 22, at 54 (observing that the chosakan are likely to "share the same perspective" as, and to behave in ways that are predictable to, the General Secretariat).
319. See Abe, supra note 22, at 314-316, 318 (arguing that Japanese judges must comply with a norm of avoiding challenges to "the will of the political majority" if they are to rise to "responsible positions" in the judiciary).
320. See, e.g., Craig Martin, Lessons for Japan from Canada: Establish Limits on Naval Support to U.S., JAPAN TIMES, Jan. 10, 2008, at 15, available at http://search.japantimes.co.jp/cgi-bin/eo20080110al.html (describing the debate over the constitutionality of a Japanese statute authorizing the supply of fuel to naval forces engaged in Afghanistan).
321. See supra note 12 and accompanying text.
322. Interview with Judge I, supra note 194.
323. Interview with Justice B, supra note 17.
324. One liberal justice-who described his jurisprudential approach as greatly influenced by the understanding of judicial review expressed in the famous footnote four of United States v. Carotene Products Co., 304 U.S. 144, 152 n.4 (1938), and expounded in JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980)-indicated that he had been exposed to this body of American constitutional theory by a chosakan.
325. One of my interviewees related to me precisely such a story on a not-for-attribution basis. A former member of the Court who was known both for his intellectual ability and liberal leanings confided in my source that he had once told a chosakan that he wished to decide a case against the chosakan's recommendations. The clerk in question convened a full meeting of the chosakan to discuss the case then returned to the justice and told him: "All thirty of us think your way of thinking is wrong." The justice acquiesced.
326. See O'BRIEN WITH OHKOSHI, supra note 25, at 83 (observing that both "the Court's norms" and "the legal culture" disfavor the authorship of dissenting or even concurring opinions).
327. Interview with Justice G, supra note 14.
328. Id.
329. ITOH, supra note 14, at 78-79.
330. Interview with Justice A, supra note 17.
331. Interview with Masako Kamiya & Hidenori Tomatsu, supra note 46.
332. Interview with Justice C, supra note 165.
333. Interview with Justice D, supra note 59.
334. Id.
335. Interview with Justice A, supra note 17.
336. It should be noted that neither a lack of judicial experience nor a lack of chosakan assistance has prevented the former law professors on the Court from being relatively prolific dissenters. See O'Brien Ohkoshi, supra note 17, at 57-58, 57 tbl.3.3 (finding that the Court's former law professors authored over a quarter of all nonmajority opinions issued between 1981 and 1993 and listing by occupation the most frequent dissenters on the Court during that time). Their capacity for generating separate opinions with little or no help from the chosakan is perhaps unsurprising in light of the fact that, unlike private attorneys or bureaucrats, they are professionally accustomed to publishing their own ideas and critiquing judicial decisions. The sole law professor on the Court at any given time cannot be expected, however, to shoulder the burden of articulating an alternative vision of the law on every occasion that such vision is needed. Not only the sheer magnitude of the task, but also the internal organization of the SCJ, limit what one justice can accomplish: a lone justice has no effective way of monitoring, much less influencing, the cases handled by the two petty benches to which he or she does not belong.
337. See MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 20 (1981) ("[T]he universal pattern is that judging runs as an integral part of the mainstream of political authority rather than as a separate entity.").
338. See supra Part II.
339. See supra Part III.
340. Last year, for example, the Nagoya High Court held that the SDF's air support operations in Iraq violate Article 9, but it denied relief on the ground that the plaintiffs lacked standing. The government responded by vowing publicly to ignore the decision. See Craig Martin, Rule of Law Comes Under Fire: Government Response to High Court Ruling on SDF Operations in Iraq, JAPAN TIMES, May 3, 2008, available at http://search.japantimes.co.jp/print/ eo20080503al.html (quoting Cabinet Secretary Machimura's public statement that the government "could not accept such a court ruling"). Nor is it only the Nagoya High Court that has met with less than complete obedience: the SCJ has held repeatedly that Japan's House of Representatives is unconstitutionally malapportioned, but the Diet has continually failed to comply with the standards set forth by the Court. See supra note 11 (discussing both the Court's decisions and the inadequacy of the Diet's response).
341. See RAY A. MOORE & DONALD L. ROBINSON, PARTNERS FOR DEMOCRACY: CRAFTING THE NEW JAPANESE STATE UNDER MACARTHUR 320 (2002) (noting that, from the moment that the LDP was formed in 1955, one of its "principal aims" has been revision of the postwar constitution in a manner that would deemphasize the protection of individual rights and weaken Article 9's prohibition against militarization);
342. J. Patrick Boyd & Richard J. Samuels, Nine Lives?: The Politics of Constitutional Reform in Japan, 29 POL'Y STUD. 1, 17-26 (2005), available at http://www.eastwestcenter.org/fileadmin/stored/pdfs/PS019.pdf (describing early efforts by the LDP to amend Article 9);
343. Masami Ito, Article9 in Abe's Sights, JAPAN TIMES, Apr. 14, 2007, available at http: //search.japantimes.co.jp/cgi-bin/nn20070414a2.html (noting that amending Article 9 has been a goal of the LDP since the party was founded and discussing recent efforts to lay the legal groundwork for such an amendment).
344. See David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO. L.J. 723, 778-785 (2009) (discussing how and why actual judicial power depends upon the appearance of judicial power).
345. Interview with Justice E, supra note 174.
346. Id.
347. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1890-1891, 1883-1884 tbl.2 (listing all appointments made to the SO from 1983 to 2005 and noting that Prime Minister Koizumi, for example, was able to appoint a majority of its members within two years of taking office).
348. See Kenpō art. 79, para. 2 ("The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse often years, and in the same manner thereafter.").
349. O'Brien & Ohkoshi, supra note 17, at 53-54;
350. see also RAMSEYER & ROSENBLUTH, supra note 3, at 152-153 (noting that the retention elections have in practice been meaningless).
351. See Keith Krehbiel, Supreme Court Appointments as a Move-the-Median Game, 51 AM. J. POL. SCI. 231, 233 (2007) (describing and adding to a body of literature that treats appointment of the median member of the Court as being of unusual importance because the policy outcomes that the Court reaches will reflect the views of the median justice).
352. See, e.g., THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT 79-80 (1989) (observing that the Supreme Court tends to adopt policies favored by the general public, but only after a four-year lag);
353. Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. Rev. 795, 806 (1975) (arguing that the Supreme Court tends to invalidate laws during the "lag period" after a realigning election that leaves it temporarily out of sync with the elected branches);
354. William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am. POL. SCI. Rev. 87, 97 (1993) (finding that the Supreme Court responds on a majority of occasions to changes in public opinion, but only after a "significant delay" of approximately five years on average).
355. But see John B. Taylor, The Supreme Court and Political Eras: A Perspective on Judicial Power in a Democratic Polity, 54 REV. POL. 345, 364-68 (1992) (questioning whether the "lag period" explanation applies beyond the New Deal Era).
356. HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II, at 324 (5th ed. 2008).
357. Id.
358. see also H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 43-44 (1994) (documenting the order in which the Justices vote and speak in conference).
359. U.S. CONST, art. I, § 3, cl. 6.
360. see DENIS S. RUTKUS & LORRAINE H. TONG, CONGRESSIONAL RESEARCH SERVICE, THE CHIEF JUSTICE OF THE UNITED STATES: RESPONSIBILITIES OF THE OFFICE AND PROCESS FOR APPOINTMENT 6 & n.26 (2005), http: //digital.library.unt. edu/govdocs/crs/permalink/rneta-crs-7287 (noting that the duty of administering the presidential oath of office is traditionally reserved for the Chief Justice).
361. See id. (discussing the annual report on the federal judiciary that is prepared by the Chief Justice).
362. See 20 U.S.C. § 76cc (2007) (designating the Chief Justice a trustee of the Joseph H. Hirshhorn Museum and Sculpture Garden);
363. Alan B. Morrison & D. Scott Stenhouse, The Chief Justice of the United States: More than Just the Highest Ranking Judge, 1 CONST. COMMENT. 57, 61, 61-62 (1984) (listing a number of responsibilities of the Chief Justice that are "remote from judicial administration").
364. On a more serious note, the Chief Justice does also have the power to select the members of certain temporary or special-purpose tribunals, wherein lies some opportunity for ideological manipulation. See Morrison & Stenhouse, supra, at 61;
365. Theodore W. Ruger, The Judicial Appointment Power of the Chief Justice, 7 U. Pa. J. CONST. L. 341, 343, 391-394 (2004) (listing the tribunals that the Chief Justice is authorized to fill and hypothesizing that conservative chief justices may favor conservative judges for tribunals that perform politically sensitive tasks).
366. See Interview with Justice E, supra note 174 (describing some of the Chief Justice's responsibilities for matters of administration and protocol as "just ridiculous").
367. See supra note 148.
368. Interview with Justice A, supra note 17;
369. see supra notes 108-115 and accompanying text.
370. See Ramseyer & Rasmusen, Managed Judges, supra note 3, at 1879 (summarizing the various ways in which the powers of Japan's Chief Justice are much greater than those of his American counterpart).
371. RAMSEYER & RASMUSEN, MEASURING JUDICIAL INDEPENDENCE, supra note 3, at 12, 37-38;
372. O'Brien & Ohkoshi, supra note 17, at 48.
373. See ITOH, supra note 14, at 250-51 (discussing the formal authority and operating procedures of the kaigi); Interview with Justice G, supra note 14 (indicating that, although the kaigi does perform "important work, " the justices are generally too busy handling cases to manage the judiciary via the kaigi).
374. K.ENPŌ art. 6, para 2.
375. Interview with Justice G, supra note 14. This justice further revealed that when he was Secretary General, he was simply told after the fact who the next Chief Justice would be, without any prior consultation.
376. Japan v. Sotoyama, 20 KEISHŌ 901 (Sup. Ct., Oct. 26, 1966).
377. KENPŌ art. 28.
378. Matsui, supra note 139, at 19.
379. Japan v. Hasegawa, 23 KEISHŌ 305 (Sup. Ct., Apr. 2, 1969).
380. Matsui, supra note 139, at 19-20.
381. Miyazawa, supra note 22, at 58;
382. Interview with Masako Kamiya & Hidenori Tomatsu, supra note 46;
383. Interview with Masako Kamiya & Hidenori Tomatsu, supra note 46;
384. Matsui, supra note 139, at 21.
385. See Abe, supra note 22, at 316 (reporting that the selection of Ishida was a deliberate move by the Cabinet to correct the "leftist bias" of the judiciary); Miyazawa, supra note 22, at 58; Matsui, supra note 139, at 21 & n.55 (both describing lobbying efforts made on behalf of Ishida by Tokutaro Kimura, a former LDP justice minister); Interview with Setsuo Miyazawa, supra note 136 (noting that Kimura was Ishida's kendo partner).
386. See O'Brien & Ohkoshi, supra note 17, at 49 (noting Ishida's efforts to "purge the bench" of Seihokyo members); Matsui, supra note 139, at 20-21 (discussing Tsuruzono v. Japan (The All Agricultural & Forest Workers Case), 27 KeishO 547 (Sup. Ct., Apr. 25, 1973), and the crackdown on Seihokyo).
387. Matsui, supra note 139, at 23.
388. See Miyazawa, supra note 22, at 58 (describing Tanaka as "disappointed and demoralized" at the time of his departure from the Court in 1973).