More on the election campaign against conservative justices in Japan

As promised, Colin Jones has an interesting update on the public campaign to unseat a pair of sitting Supreme Court justices in the upcoming Japanese election. Thus far, in a nutshell, a retired Supreme Court justice is calling for the election defeat of two of his former colleagues in an advertising campaign that expressly uses a U.S. Supreme Court decision to criticize the Japanese Supreme Court for being too conservative. Read on:

The legislative elections being held in Japan on August 30 are widely expected to result in the end of half a century of almost uninterrupted rule by the Liberal Democratic Party. This being the case, the constitutionally mandated “citizens’ review” of supreme court justices that will be conducted at the same time will likely be even more of a sideshow than usual. Presented with a ballot listing the names of justices most Japanese people have never heard of, and provided with information about them the providence and completeness of which is uncertain, many voters either ignore this part of the polling process or submit unmarked ballots. Helped by court decisions holding that blank ballots can be counted as votes of approval, this process has added a largely harmless (from the perspective of the judiciary) veneer of democratic involvement in the judicial selection process.

It will be a shame, however, if this part of the coming election does turn out to be a sideshow as some interesting things are happening which deserve more attention. As discussed in David Law’s earlier post on this subject, some significant efforts are going into turning the judicial selection process into something more meaningful. In a full page opinion ad in the August 24 Asahi Shinbun (one of Japan’s leading national newspapers), an organization devoted to remedying electoral malapportionment is calling upon people to vote against two sitting justices who in a 2007 supreme court decision upheld an election in which the votes of citizens in some electoral districts were worth as little as 0.2 votes in others in terms of Diet representation.

In an interview in the Asahi newspaper on August 22, former supreme court justice Tokuji Izumi criticizes the court╒s past reluctance to act aggressively on this issue, noting that the seemingly arbitrary guidelines it has developed in the past – imbalances in voter representation of up to 300% in the House of Representatives and 600% being constitutional – are without foundation. Issuing decisions which provide a guidepost to the legislature, as the court has done in other areas, will not work with this problem. As Izumi says, “the selection of Diet members is a decision of the voters. But it is difficult for the Diet to itself reconsider the system by which it is chosen, difficult to make changes to the system by which you yourself were chosen. To the extent that you cannot expect the legislature to do so, it is up to the judiciary to provide checks on this issue.”

Naming names has never been a particularly “Japanese” thing to do, particularly in the establishment. That is why this sort of ad campaign seems so significant. First, it is clearly well-funded (full page ads in a national newspaper aren’t cheap). Second, the list of people named as “founders” of the movement include Justice Izumi himself as well as a number of leading lawyers, former judges and prosecutors, well known academics and journalists, a number of corporate leaders (including the CEO of the Orix Group) – even a Fields-medal-winning mathematician. This is not the typical Japanese citizens group comprised of weekend activists holding meetings and leafleting against the establishment. It is the establishment, or a meaningful chunk of it, at least.

What is also interesting about this particular ad is it refers to an unnamed 1983 U.S. Supreme Court case (presumably Karcher v. Dagget, 462 U.S. 725 (1983)) which it characterizes as having held unconstitutional a New Jersey electoral districting which resulted in votes on some districts being equal to only 0.993 of those in others. A much higher tougher standard than has prevailed in the incomprehensible mishmash of Japanese malapportionment cases. Whether the U.S. case is being properly characterized or represents a valid comparative is beside the point. What is significant is that U.S. Supreme Court jurisprudence is being used as part of a roadmap to greater equality in the Japanese political system. This is not unprecedented, of course, but that it is being used in an appeal made directly to Japanese citizens, rather than in obscure academic journals or court cases is interesting.

Whether this campaign will have any effect will be revealed in a few days. It is hard to imagine enough voters reading the ads or thinking about the issues to actually result in Justices Wakui and Nasu being cast out of their chambers. But even if there is no direct impact, this and other ads may be an indicator that it will become increasingly difficult for Japanese judges to beaver away in comfortable quasi-autonomy, issuing decisions which favor the establishment over the people. Apparently even parts of the establishment have had enough.

— Colin P.A. Jones, Professor, Doshisha Law School