The Supreme Court and Benign Elite Democracy in Japan (review)

The Supreme Court and Benign Elite Democracy in Japan is a valuable addition to the literature on Japan’s judicial system. The author, State University of New York at Plattsburgh Professor Hiroshi Itoh, very likely knows more about the inner workings of the Japanese Supreme Court than any other outsider. Indeed, he probably knows more about that institution than many of those who have worked within its fortress-like walls. Much of that knowledge is crystallized in this volume, making it an indispensable work for anyone interested in the Supreme Court or the judicial system in general. Still, given the author’s deep knowledge and expertise, one might be excused for wishing for even more.

Generations of students of Japanese law have relied on translations of Supreme Court opinions contained in collections compiled and edited by Itoh and Lawrence Beer. As those works attest, Itoh is deeply versed in the Court’s jurisprudence. If anything, he is even more deeply versed in the Court’s institutional processes. He appears to have read most of what has ever been written about the Court, including memoirs by numerous former justices. Most important, since 1980 he has conducted in-depth interviews with nearly 40 retired justices, as well as several of the research judges who assist the justices, three former prime ministers, and numerous other government officials, lawyers, and scholars. (In the interest of full disclosure, I should mention that early in my own research on the Japanese judiciary I benefited greatly from the opportunity to accompany Itoh for interviews with a few retired justices.) Nearly all the interview subjects evidently were willing to speak to Itoh on the record. The book is filled with details provided by former justices, with the sources cited by name, and consists of six chapters, together with an introduction, conclusions, and four appendices (one of which lists all 153 justices through mid-2009).

Chapter 1 introduces the theme of “elite governance.” The chapter commences with a brief overview of governance structures from the Tokugawa period to the present, followed by a brief history of the judicial system. The most interesting part of the chapter is an examination of “judicial elitism,” which, according to Itoh, “consists of a triumvirate of the . . . justices of the Supreme Court, the upper echelon of the Supreme Court General Secretariat, and top judicial administrators of the lower courts” (p. 26). This triumvirate dominates judicial administration and “exerts a pervasive influence” (p. 26) over personnel policy, including appointments, promotions, and transfers of lower court judges. While the theme of internal control of the judiciary has been explored by many others, Itoh enriches the debate by providing the views of various justices regarding concrete aspects of the system.

Chapter 2 offers a detailed account of the decisional process at the Supreme Court. The longest section, and to me the most interesting (although that may reflect my personal bias as a former law clerk at the U.S. Supreme Court), is the examination of the role of research judges, a group of midcareer judges who assist the justices. Itoh states that, next to the justice, the research judge “is the second most important actor in the judicial process” (p. 57). After reading his detailed account, one cannot help feeling that, in many respects, the research judge is the most important actor in the process, at least for the vast majority of cases.

To me, the most thoroughly satisfying chapter is chapter 3, which contains a detailed case study of a major administrative law case, the Osaka airport case, in which nearby residents, complaining of noise pollution, sought damages and an injunction banning night flights. Itoh traces the litigation from its inception in 1969 through three stages of judicial decisions: district court, high court, and Supreme Court Grand Bench. The case study provides a fascinating example of numerous facets of Supreme Court proceedings. Yet the significance extends far beyond activities at the Court. The account reveals complex...