« Transparency as a Sword | Main | More right-wing snowflakes are outraged »

Monday, March 18, 2019

Diversity and Judicial Review

I'm writing about Winston Churchill's views on the American Constitution, and one focal point of my paper is his thought that judicial review is a function of diversity. In other words, the more diverse a state is, the more frequent or robust judicial review will be. Testing this claim is challenging. How do you control for other relevant variables? How do you measure diversity? And so on.

Here is a simple test that occurred to me though. What is the least diverse constitutional democracy? I think the answer is Japan (or Japan is one of the least diverse). Under Churchill's diversity idea, one would expect that Japan would use judicial review far less than other such democracies. It turns out that this is true. I'm looking for a precise figure, but it appears as if the Japanese Supreme Court has struck down less than ten statutes in its entire history. Could there be another explanation for this? Sure, but it is an interesting data point. 

 

Posted by Gerard Magliocca on March 18, 2019 at 12:39 PM | Permalink

Comments

What an interesting thesis! Well, specifically to Japan, you are quite correct that the Japanese Supreme Court very rarely strikes down statutes. But there is a strong confounding variable in the Supreme Court's own institutional posture.

The Japanese Supreme Court is fundamentally a court of final appeal, not a Constitutional Court. The Court can consider Constitutional questions, but only in the context of a specific appeal. The Supreme Court does not, for example, take challenges to a law's constitutionality in the abstract.

While this might not seem in theory that different from the constraints of the common-law system we have in the United States, in practice Japan's Supreme Court very rarely gets to constitutionality in a case. The Court nearly always disposes of appeals on other grounds and never addresses the Constitutional question.

Other factors, some brought up here (nearly unbroken post-war LDP rule, the cabinet/Diet system of civil service vetted law-making, the unique history of Japan's Constitution), also significantly reduce the number of cases where the Court exercises judicial review.

So you are right on the facts of the example! There might be some difficulty though in drawing much by way of causal conclusion, although perhaps there are ways to address these and other issues.

C. D. A. Evans
Assistant Professor
Baruch College

Posted by: C. D. A. Evans | Mar 25, 2019 3:39:51 PM

Sweden used to be very non-diverse and had little judicial review, with a law struck down for the first time this century I think. It has become much more diverse and has also seen an increase in judicial review. I suspect the developments are unrelated, but a data point nonetheless.

Posted by: Jr | Mar 24, 2019 4:43:04 PM

I suppose that ethnic diversity does drive judicial review on certain topics, but I would think that political diversity matters a lot more. On that vector too, Japan was, as I recall my comparative politics intro course of some years ago, governed by one party for most of its post-imperial history.

Posted by: Asher Steinberg | Mar 18, 2019 6:54:54 PM

Interesting. But judicial review touches also agencies, governmental agencies ( mainly in fact ) not only statutes and legislation. In the US also, here I quote from:

Citizens to preserve overton park v. Volpe , here:

A threshold question - whether petitioners are entitled to any judicial review - is easily answered. Section 701 of the Administrative Procedure Act, 5 U.S.C. 701 (1964 ed., Supp. V), provides that the action of "each authority of the Government of the United States," which includes the Department of Transportation, 21 is subject to judicial review except where there is a statutory prohibition on review or where "agency action is committed to agency discretion by law." In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no "showing of `clear and convincing evidence' of a... legislative intent" to restrict access to judicial review.

End of quotation:

What counts more, is not diversity, but the level of rule of law. More of it, more petitions, more reviews. Also, the sense of " watchdoghood " public and NGO's bear, more of it, more petitions more reviews. Sometimes, the review is a sort of routine, that is to say, as legal routine, inherently and prescribed by law, legislations or actions, are reviewed without the need of petitioning.

Finally, much depends upon the constitution,and the substantive content it bears or held,all along with independent judiciary.

To the ruling mentioned:

https://caselaw.findlaw.com/us-supreme-court/401/402.html

Thanks

Posted by: El roam | Mar 18, 2019 1:41:51 PM

Post a comment