Japanese Supreme Court: Rare Constitutional Review, 13 Laws Struck Down

• The Supreme Court of Japan was established by the 1947 Constitution after World War II.
• It has virtually no original jurisdiction and has never exercised the narrow exception it theoretically possesses.
• The SCJ has struck down only 13 national laws on constitutional grounds in 80 years, never any local laws.
• This record makes it one of the most conservative constitutional courts globally, especially compared to the US and German high courts.
• Its rare use of constitutional review significantly limits the viability of challenging Japanese legislation on constitutional grounds.

Lawyers advising clients with interests in Japan must therefore recognize this deeply ingrained aspect of Japanese judicial review.

The Supreme Court of Japan (SCJ), known domestically as "Nihon no saikosai," was established under the 1947 Constitution, which Japan adopted in the aftermath of World War II. This foundational document defined the court's role, primarily as an appellate body. While it possesses the theoretical power of judicial review to assess the constitutionality of legislative acts, its practical exercise of this power is exceptionally rare, distinguishing it significantly from many other high courts globally.

The SCJ's jurisdiction is almost exclusively appellate, meaning it hears cases on appeal from lower courts. In terms of original jurisdiction, the court has virtually none, even in theory. A single, narrow statutory exception exists for the impeachment of Commissioners of the National Personnel Authority. However, in its entire history since its inception, the Supreme Court of Japan has never once exercised this specific original jurisdiction, underscoring its focused role on reviewing lower court decisions rather than initiating new cases.

Despite its constitutional authority to invalidate legislation passed by the National Diet, the Supreme Court of Japan has demonstrated an extreme reluctance to do so. Over the past eight decades, the court has struck down a mere handful of laws on constitutional grounds—13 in total, depending on how repeat litigation is counted. Crucially, all these instances involved national laws; the SCJ has never once invalidated a local law on constitutional grounds.

This track record has led experts, such as Professor David S. Law, E. James Kelly, Jr., Class of 1965 Research Professor of Law and Courtesy Professor of Politics at the University of Virginia, to characterize the SCJ as arguably the most conservative constitutional court in the world. Its infrequent use of its constitutional review powers stands in stark contrast to the judicial activism seen in other major democracies, highlighting a unique approach to the separation of powers within the Japanese legal system.

To fully appreciate the infrequent nature of Japanese Supreme Court constitutional review, it is instructive to compare its record with that of other prominent constitutional courts. Over a roughly equivalent period of 80 years, the Supreme Court of the United States has invalidated more than 900 laws on constitutional grounds. Similarly, Germany's Bundesverfassungsgericht, or Federal Constitutional Court, has struck down over 600 pieces of legislation during the same timeframe.

The vast disparity in these figures underscores the exceptionally low frequency of judicial review in Japan. This comparative analysis reveals that the Supreme Court of Japan's powers, while constitutionally present, are exercised with a degree of restraint that is virtually unmatched among its international counterparts, making "Japan judicial review frequency" a notable characteristic of its legal landscape.

The SCJ's historical pattern of extreme judicial conservatism has profound implications for legal professionals and their clients operating within Japan. The near absence of successful constitutional challenges to National Diet acts suggests that challenging legislation on constitutional grounds is an exceedingly difficult and often unpromising avenue for litigation.

Lawyers advising clients with interests in Japan must therefore recognize this deeply ingrained aspect of Japanese judicial review. Managing client expectations regarding the viability of such challenges is crucial, as the Supreme Court of Japan's consistent reluctance to overturn laws indicates a very limited scope for leveraging constitutional arguments to invalidate governmental or legislative actions. This insight is critical for developing effective litigation strategies and understanding the practical limits of legal recourse in the Japanese system.

Lawyers advising clients with interests in Japan should note the Supreme Court of Japan's extremely rare use of constitutional review, indicating a very limited avenue for challenging legislation on constitutional grounds. This insight is critical for litigation strategy and managing client expectations regarding legal challenges to Japanese laws.

Source: Original reporting via SCOTUSblog interview with Professor David S. Law.