A MARKED DEGREE OF RESPECT VS. INDIFFERENCE: AMAZING GAP IN HOW JAPANESE AND AMERICANS VIEW THE JUDICIARY
The extensive coverage of the recent death of Supreme Court Justice Anton Scalia in the US press demonstrates an amazing difference between the US and Japan in how such news is covered.
The Wall Street Journal (WSJ) in its February 13 issue front-paged a photo showing 13 flags flown at half-mast in memory of Scalia at the Washington Monument. I have no recollection of such elaborate coverage in the Japanese press of a death of any of our Supreme Court justices. If the national election, slated for this coming July, involves both houses of parliament, voters will be called on to render their judgment on the 15 justices of the Japanese Supreme Court. But who among the voters have enough knowledge about any of these justices? In fact, I would assume that an overwhelming majority of voters do not even know their names.
In the US, where the press often carries photos and extensive news on each of the Supreme Court justices, it can be said that many voters are aware of the individual names and previous legal rulings of their justices. This makes one feel that justice in the US is far more deeply linked to the people’s lives than in Japan—although it is difficult to generalize in view of differences in the culture, the current state of affairs, and the political process of each country.
The US Supreme Court comprises nine justices, all nominated by the President and approved by more than 60 members of the Senate. Once confirmed, they can hold office for the remainder of their lives, although there are of course cases in which they resign or retire of their own volition.
Justice Scalia was nominated by President Ronald Reagan in 1986, serving for 30 years until his death on February 13 while still in office. The Mainichi Shimbun characterized him as “the leading conservative on the bench,” while other Japanese newspapers noted the judge “wrote the decision that affirmed the right to possess firearms at home for self-defense” and “took the dissenting view in the decisions that affirmed same-sex marriage and ObamaCare.”
In many important cases that have polarized US public opinion, including same-sex marriage, the Supreme Court justices have rendered 5-4 decisions. With this 5-4 power relationships in the Supreme Court in favor of the conservatives having shifted to a 4-4 tie as a result of Scalia’s death, the Republicans and the Democrats are fiercely clashing over his replacement.
“Originalism”
President Obama has announced he will nominate Scalia’s successor, but Republican Senate majority leader Mitch McConnell has declared: “This vacancy should not be filled until we have a new president.”
Republican presidential candidates all agree with McConnell, while their Democratic counterparts Hillary Clinton and Bernie Sanders retort that the incumbent president has every right to nominate a replacement.
It is not an easy task for Obama to decide on the ninth justice. If he nominates too liberal a replacement, he will not be able to obtain confirmation in the Republican Senate, which also controls the House. If Obama postpones his nomination, however, it will be the next president who will in effect decide the future direction of the Court. Because of the significance of Scalia’s replacement, American voters are expected to go to the polls in record numbers in November to support the party of their choice.
In its February 16 Review & Outlook section, the WSJ referred to the current situation at the Supreme Court as “a bloc (of four liberals) that never breaks” pitted against a group of conservative justices who refuse to render identical judgment, conforming instead to a philosophy that strictly adheres to the spirit of the Constitution, a philosophy that doesn’t necessarily sympathize with the policies of the Republican Party.
Two of the liberal justices were appointed by Bill Clinton, and two others by Obama. Citing a number of specific cases, the WSJ points out that these four almost always vote together, none of them breaking ranks, and it notes that these decisions handed down always comply with the policies of the Democratic Party, making the Court “so political.”
Meanwhile, the economic journal notes Scalia and other Republican nominees have at times opposed the policies of the Republican Party outright, giving precedence to the Constitution and its legal principles.
What explains this? The answer can be found in the concept of “originalism,” which reflects Scalia’s legal philosophy. Scalia has endeavored to balance the views of liberal justices who reinterpreted the principles of the Constitution to adapt them to the times, contending that America’s is a “living constitution.”
As examples of his efforts to remain consistently committed to the spirit of the Constitution, the WSJ cites his recognition of flag burning as a legitimate right of American citizens, while at the same time supporting individual ownership of firearms and opposing abortion and same-sex marriage.
Distance between People and Judiciary
Recognizing flag burning as a citizen’s right clearly differs from the policy of the Republican Party. Scalia once remarked that “a sandal-wearing, scruffy-bearded weirdo” may try to burn the flag, but he nevertheless recognized flag-burning as a legitimate right of individuals. This episode certainly reveals Scalia’s essence as a legal professional.
Finding a person of this stature makes the task all the more difficult. The High Court is now split 4-4, and it is a presidential election year. The battle over the nomination has undoubtedly become one of the most important issues of the campaign.
The cases that the Supreme Court has at hand include immigration reform, abortion rights, and affirmative action in college admissions. The Court is expected to rule on these cases by June. There is, however, a matter far more important than any of these—the First Amendment of the Bill of Rights.
The Bill of Rights was not written into the US Constitution when it was drafted in 1787, but was included later, ratified in 1791.
Specifically, the WSJ warns that the Friedrichs case on collection of union dues, which the Court is scheduled to rule on this year, is probably a 4-4 tie now. If a liberal justice is confirmed to tip the balance to 5-4, the mandatory payment of union dues will be affirmed, which could result in union members being deprived of their right to not support union policies they oppose.
The WSJ also sounds the alarm that those opposing abortion out of religious principles are likely to “lose their religious-liberty challenge to ObamaCare’s coerced subsidies for abortion.”
Watching the heated debate developing in the US over a replacement for a Supreme Court justice, one cannot but become keenly aware of the vast distance existing between the people and the judiciary in Japan. As mentioned earlier, most of us don’t even know who our Supreme Court justices are, remaining largely indifferent to the judgments they routinely render. I seriously wonder if this may not be a reflection of an irresponsible lack of vision pertaining to the present and future shape of our own country.
(Translated from “Renaissance Japan” column no. 694 in the March 3, 2016 issue of The Weekly Shincho)