In Print: Volume 88: Number 6
Why Has Judicial Review Failed in Japan?
By David S. Law
88 Wash. U. L. Rev. 1425 (2011)
(PDF)
Judicial review in Japan can be characterized as a failure in more than one sense. On the one hand, the Saikō saibansho, or Supreme Court of Japan (SCJ), strikes down government actions so rarely that the judicial enforcement of constitutional limits on government power exists more in theory than in practice. On the other hand, even on those rare occasions that the SCJ does exercise the power of judicial review, its practical ability to secure government compliance in all but the most trivial of cases is open to question. Over the course of its entire existence—a period spanning over six decades—the SCJ has struck down only eight laws on constitutional grounds and thus cemented its reputation as “the most conservative and cautious in the world” with respect to the exercise of judicial review. By contrast, the German Bundesverfassungsgericht, a slightly younger court, has already struck down over six hundred laws, while the United States Supreme Court, with a docket similar in size to that of its Japanese counterpart, has struck down roughly nine hundred laws over the same time frame. Worse still, in the one area where the SCJ has struck down legislation of any political or ideological significance—namely, the electoral apportionment of the House of Representatives—the government has failed for decades to comply with the Court’s rulings.
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