Blog of the International Journal of Constitutional Law

Is the Japanese Supreme Court spreading its wings?

Last week, the Japanese Supreme Court ruled that it is unconstitutional for a municipal government to offer city-owned land without charge for the site of a Shinto shrine. The ruling by the top court’s Grand Bench upheld the contention of the plaintiffs that the municipal government of Sunagawa, Hokkaido had violated the constitutional requirement of a separation of church and state when it granted city land to the shrine without charge. The court said that “It is inevitable that the general public would believe the local government supports a specific religion if it provides specific benefits to it.” This case follows squarely the 1997 Ehime Case in which the court ruled that it was unconstitutional for a prefectural government to fund offerings to Shinto Shrines.

The broader structural question, beyond the scope of this case, is whether the Japanese Supreme Court will assume a more activist stance in over-ruling government action now that the long-ruling Liberal Democrats have lost power. This would certainly be the prediction of political science studies of courts. Even though the specifics of this case do not fit the logic of our theories of “hegemonic preservation” or “political insurance” in which prospective losers seek to empower the court to constrain government later on, the court itself may feel freer to strike government action now that there is no longer a dominant party that can easily constrain the court. This is the second ruling of unconstitutionality in less than two years; the previous sixty one years of constitutional practice had yielded only seven such instances.

Thanks to Tokujin Matsudaira for the tip on the case!


2 responses to “Is the Japanese Supreme Court spreading its wings?”

  1. David Law Avatar

    So, Tom, I’m going to be a naysayer/killjoy and say you hit the nail right on the head with your observation that this follows squarely from the Ehime case. Wouldn’t it have been more of a surprise if the Court had come out the other way, given Ehime? And unlike the reapportionment decisions, say, Ehime did not engender much political pushback. Another factor here weighing in favor of slightly less judicial timidity: this is the Court picking on municipal government, not national-government policy. (I wonder who is in control in Sunagawa. If it’s right-leaning, LDP-ish government, which would be my guess from what the municipal government did here, this decision might well put the Court on the same side as the national government against the local government.) And note too the Court’s admonishment to take “socially accepted ideas into account.” Translation: no rocking the boat, please.

    But it is true that increased activism would be consistent with theories predicting greater judicial activity in the face of an increased level of expected government turnover.

  2. Tom Ginsburg Avatar
    Tom Ginsburg

    Good question–I’m not sure who is in charge in Sunagawa, but this does seem like an instance where the constitutional violation was so blatant that we ought not read too much into it. Touche!

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