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Grace Nguyen
LSJ 367
Professor Cichowski
22 November 2013
The Political Nature of the Japanese Supreme Court
Japan is a nation that has retained its roots throughout its history, intertwining its
previous days of imperialism with its current, stable democracy. The product of this democracy,
the current Japanese Constitution, is a representation of a new culture, a legal culture that is
based on the power of the people, the common good, and Japans democratic government. This
legal culture has been cultivated through the influence of the Japanese Supreme Court. Though
some believe that the Japanese Court is a conservative, apolitical place that fears judicial review,
I argue that Japans Supreme Court has made a huge political impact on its modern society by
making political decisions to expand the judicial system and protect human rights.
To begin, I will introduce the Japanese legal system; its structure, composition, and
history, highlighting the important political and cultural factors, as well as events, that have
influenced its creation and progression to judicial power. I will demonstrate that the current
Supreme Court of Japans power has been supported by Japans democracy and a culture
dedicated to the good of the community. Additionally I will establish that the Japanese Supreme
Courts daily interaction with the lower courts increases its importance as a decision making
body in Japan. Next, I will focus on several cases that illustrate the Japanese Supreme Courts
power to interpret their constitution. These cases will provide examples for how the Supreme
Courts have promoted equality in all Japanese citizens and showcase how the Japanese Supreme
Court has created new social norms in a traditional society. Finally, I will explain and refute

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claims that support the idea that the Japanese Supreme Court is apolitical and conservative. The
Supreme Court of Japan, also known as Saik-Saibansho, has played a vital political role in
impacting Japanese culture, by constantly influencing the ordinary courts litigation process, and
interpreting the Japanese constitution to purposefully change the norms of society in relation to
labor law and divorce law.
Part I: The Identity of the Supreme Court of Japan
To better understand how the Supreme Court functions in society, it is critical to
understand the historical background that caused the creation of the court, as well as its structure
and the factors that influence its decisions.
Originally, Japans government and legal culture was framed by the traditional
importance it placed in the Emperor, who gave no concrete power to the Supreme Court. Japans
first semblance of a constitution was officially enacted on November 29th 1890; this was the
Meiji Constitution and it provided basic principles of Japans government[and] was modeled
after the Prussian Constitution, [with a] concentration on sovereignty of Emperor (Redden).
According to the Meiji Constitution, any rights granted to the Japanese people were due to the
Emperors benevolence, and any movements in Japans government, including in its legislative
or judicial branches could only happen under the Emperors blessing (Redden).
The current Supreme Court could not be created under such conditions; its modern day
influence and judicial review powers only occurred after Japan became a true democracy. The
democratic ideal that created separate branches and allowed for the Supreme Court came after
WWII. This ideal took the form of a constitutional monarchy with a parliamentary government.
In 1945, Japan surrendered to the Allied Powers, and it wasnt until 1951 that Japan restored its
independence from other nations namely from the United States (Law and Judicial Systems of

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Nations). Western civilization, because of the United States presence in Japan and of westernized
nations in the world, highly influenced the Japanese legal culture; for example, Japans criminal
code was originally drafted by French scholar Boissonade as early as 1880, and Japans civil
code takes much of its content from German criminal code (Redden). Continuing under western
influence, while maintaining the important Japanese social values of community and unity, the
Meiji Constitution was completely revamped into what it is today, the Constitution of Japan, on
May 3rd, 1947; its reform created a judiciary with a focus to serve as a safeguard for
fundamental human rights (Redden).
The new Constitution of Japan also restructured the legal system in a style that gave the
judiciary branch more room to practice its intended purpose of reviewing the constitutionality of
decisions made by Japans government. The entirety of judicial power is rendered to the
supreme courts and the lower courts (The Constitution of Japan, Art 76). The Constitution
allowed the judiciary to operate as a separate branch of the government, independent from
Japans national bicameral legislature, the Diet. It created a Supreme Court, with a clear purpose:
the supreme court is the court of last resort with the power to determine the constitutionality of
any law, order, regulation or official act (Redden). It facilitated the creation of five distinct
courts in the Japanese legal system: the Supreme Court, High Courts, District Courts, Summary
Courts (that handle minor criminal offenses and can only impose limited penalties), and Family
Courts (which specializes in all juvenile cases and family related litigation), with the Supreme
Court being the head of this system (Law and Judicial Systems of Nations).
The Japanese Supreme Courts structure is key in understanding its weight in
government. It is composed of a Chief Justice, appointed to the President after being nominated
by the cabinet, and the remaining 14 judges are all appointed by the cabinet (Legal and Judicial

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Systems of Nations). Japan has a unique aspect to this process that considers the individual
citizen: according to Article 79 of the Constitution, the people have the power to review the
appointed judges; additionally, judges can be recalled in their first general election of the House
of Representatives following their appointment and thereafter at 10 year intervals (The
Constitution of Japan). This system reviews Japanese judges, who all have at least 10 years of
assistant judge experience and who are the sole judgment in court, for Japanese courts do not
include a formal lay system. There are Petty benches (shohotei) of five judges and the Grand
bench (daihotei) which is composed of all the judges; cases involving constitutional questions
and challenges to precedents, or where the Petty bench has fought, will be referred up the Grand
bench from the Petty bench justices (Legal and Judicial Systems of Nations)
Along with the separation of powers and its structure, the Constitution gave the Supreme
Court the freedom and power it needs to make constitutional decisions. In relation to the Diet or
the Emperor, the Supreme Court has original jurisdiction in proceedings concerning the
impeachment of commissioners of the National Personnel Authority, and through the nations
civil code, has a great amount of discretion in choosing penalties for ill behavior and other
crimes (Law and Judicial Systems of Nations). The Constitution has also granted ordinary courts
the power to review the legality of administrative actions (The Constitution of Japan, Art 81).
Additionally within the system and the nation, the Constitution has vested in the Supreme Court
rule-making power under which it determines the rules of procedure and of practice and of
matters related to attorneys, the internal discipline of courts and the administration of Judicial
affairs; this grants the Supreme Court the ability and strength to interpret and discern policy,
which is especially critical in a society whose law is based on codified and case law
(Constitution of Japan, Art 77). The Supreme Court of Japan is the pinnacle of concrete judicial

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review power, it unifies the interpretation of law and though it is the court of last resort, grants
access to all individuals (Redden). A litigant may journey from the Summary Courts or the
Family Courts all the way through to the Supreme Court, and may appeal to the SC even after
the second appeal is exhausted at the high court, if the case involves constitutional issues
(Redden). The influence of democracy and the Constitution created the judicial system and the
Supreme Court to be a structure that could weigh the deeds of the other branches and all
individuals on a constitutional scale.
Part II: The Political Impact of the Supreme Court of Japan
Japan, with its cemented democracy and organized judicial system, has been very
political with its decisions. Political, in this instance, is defined as a word to describe any act that
has made a significant or crucially altering impact on a subjects government, society, or imprint.
The Supreme Court of Japans political choices have allowed the Japanese Supreme Court to
expand its powers through the growth of the judicial system and make landmark decisions about
labor and divorce.
The Supreme Court of Japan has created ways to further its outreach into Japanese
society by constantly addressing issues of law and providing alternative means of dispute
resolution that have a huge political impact on society. Though the Supreme Court is limited by
its civil law tradition, it still protected its lower courts by holding in 1950 that the power to
examine the Constitution was also held by ordinary courts (Redden). This, along with wide
access to individuals, provides an enormous caseload because ordinary courts are always sending
constitutional questions to the Supreme Court; in 1981 the Supreme Court rendered 1459
judgments on civil cases and 2300 on criminal cases, and decades later, its load has only
increased (Redden). This has changed the judicial branchs role as a whole it empowers the

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courts at all levels and increases the Supreme Courts power because it grants the branch the
ability to examine the unlawful behavior of citizens and government officials alike. The caseload
includes other queries, besides constitutional questions, that the Supreme Court has appellate
jurisdiction over; it includes Jokoku appeals (appeals from a judgment of an inferior court) and
Kokoku appeals (complaints against a ruling or order, other than a judgment, by a lower court)
(Law and Judicial Systems of Nations). Every day the Supreme Court is making a political
impact because it answers so many constitutional questions from various levels in the judicial
system. Additionally, in relation to the ability of the Court to give decisions to lower courts, the
Supreme Court also allows all its judges to state their opinion in a written decision after the
formal decision; this allows for political values and views to be expressed about every case, by
every judge if desired though the Supreme Court is always unified in its final decision, it is far
from apolitical in its decision process.
The Japanese Supreme Court has used its growing hold on society to make decisions that
change typical norms. Japan is historically a country based on the common good, from its
community-minded roots to its use of litigation for reconciliation purposes. Thusly, the concept
of rights shared by all citizens, rather than a focus on individual rights is written in the
constitution. However, though it is not a normal cultural ideal, the Supreme Court has made
many political decisions that have protected individual citizens rights against community
discrimination.
The Supreme Court of Japan has made distinctive decisions when it comes to labor law in
Japan. The famous case of the broadcaster Mr. Shioda and his conflict with his place of
employment is a concrete demonstration of the Supreme Courts boldness in interpreting law.
Though Mr. Shioda had a record of missing broadcasts, and inhibiting his coworkers from

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working with his unprofessional unpunctuality, the Supreme Court ruled that his discharge was
unconstitutional because no malicious intent was involved (Upham 1495). This decision is
monumental because the Supreme Court had to use its power as the last resort of dispute
resolution by overcome[ing] [the] statutory language in both the Civil Code and the Labor
Standards Law that gives both parties in an employment relationship the freedom to terminate
without any reason (Upham 1495). The Supreme Court, held Mr. Shiodas right to employment
over his employers right to end his contract, by the courts interpretation of what grounds were
suitable for termination, and not just what was in their codified national law.
The Supreme Court of Japan continues to fight for individual in labor rights, particularly
in supporting womens rights against employment discrimination. The Supreme Court of Japan
has acted to defend women against sex discrimination in the face of contrary statutory language
and [a] virtually universal social practice (Upham 1496). Japanese law explicitly prohibited
discrimination on the basis of sex, but before 1985 when the concrete law was established, is
only stated this in relation to employment. (Upham 1497). However, Japanese law protected
women by not allowing them to practice in certain fields of work, and upheld social norms that
prevented women from climbing most career ladders or engaging in professions other than ones
of a nurturing or family-based nature (Upham 1497). On December 20th of 1996, the Japanese
Supreme Court ruled that the termination of Suzuki Setsuko from her place of employment on
grounds that female employers were to retire upon getting married, was fundamentally
unconstitutional and in violation of her right to be equal with the other sex (Upham 1497). The
Supreme Court consistently thereafter protected women from being terminated due to pregnancy
or other sex discrimination practices that were commonly thought of as social norms,
dramatically expanding the meaning that the Constitution or Civil Code could have in relation to

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the protection of its citizens (Upham 1498). The Supreme Court, even when facing opposition
from other large political factors such as powerful national companies, made its decisions
according to its value of the idea of equality and led to a progressive change in the status of
women in society.
Another case that shows the interpretive and society altering judicial review power of the
Japanese Supreme Court is in the case of divorce. Though the Civil Code (Article Section 771)
states in finality that divorce can occur by any other grave reason where it is difficult for the
spouse/plaintiff to retain their marriage, the Supreme Court has interpreted this to not included
immoral spouses (Upham 1496). The Supreme Courts interpretation specifically protects wives
from being left by husbands who intend to marry their mistresses. They made their powerful
decision despite both the frustration of the Liberal Democratic Party, where many men wanted to
marry their mistresses, and the general grumbling from the male-dominant Diet. Drastically
enough, the Supreme Court reversed all its decisions later, even before the Diet could finalize its
rewording of the divorce clause. This shows that the Supreme Court can choose to follow the
legislative branch when making its decisions, and especially its monumental ones, the Court may
even lead the legislation in the direction the justices pursue. The rights cases that the Supreme
Court have ruled in has rooted the court as a place of permanent influence on Japanese society.
The Japanese Supreme Court is perpetually shaping Japanese society and legislation with its
decisions.
However, scholars have made two main arguments about the conservatism of the
Japanese Supreme Court: that the Supreme Court rarely disputes legislation drafted by its
parliament or the Emperor, and that Japans Supreme Court is less important that Japans many
alternative dispute resolution mechanisms. Though some scholars argue that the Supreme Court

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only has struck down actions as unconstitutional a handful of times, and therefore has not made
distinctly important changes with its judicial review power, it is important to make the
distinction that this low rate has no significant meaning. The low rate of unconstitutional rulings
could be due to other factors, for example, that The Diet [is] better at drafting laws naturally in
line with the Constitution than the legislative officials of other countries and thusly gives the
Supreme Court less reason to strike down legislation (Craig 8). It is more important to focus on
the reasoning behind the unconstitutional rulings that the Supreme Court has made; these rulings
happened through the reasoning of the justices and their interpretation of law, especially in light
that many of them were without the support of the Diet or certain demographics of Japanese
citizens. The second argument, that alternative dispute resolution is an example of the
nonexistent influence of the Supreme Court on Japanese Society, is invalid because of the role
that the justices play in the resolution rituals. Supreme Court Justices hand-pick, train, and
monitor all the non-judges of the three commissions that deal with the three different types of
non-litigation resolution (Funken 5). They also, along with lower court justices, prescribe the
type of alternative method to be used instead of formal litigation, cementing their role as
facilitators of all dispute resolution, even when the goal is more reconciliation based and less
adversarial based. The Supreme Court is very active and political because of its radical rulings
and leadership of non-litigation, dispute these two claims to the contrary.
Japans unique traditionalist history and government structure have helped create a
Supreme Court that both subtly intertwines itself in the daily life of the whole judicial branch and
boldly makes rulings that impact the social norms of Japanese society. The judicial systems
ample access and large case load have made the Supreme Court vital in the daily decisions of
ordinary courts. These decisions landmark progressive changes to the culture of Japan as well as

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follow the Supreme Court in its unconstrained interpretation of the Constitution. The Supreme
Court of Japan is a lasting example of a highly political and powerful high court in the world.

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