Lee administration and Supreme Court must resolve their standoff

Choi Hoon

The author is a senior columnist at the JoongAng Ilbo. 

When political institutions clash, the media generally urges restraint and compromise in the interest of national stability. But when a dispute concerns fundamental principles of constitutional government, the answer may be different.

The confrontation between Chief Justice Jo Hee-de and the Blue House and Democratic Party (DP) over Supreme Court appointments is one such case. The central question is straightforward: Which takes precedence, the chief justice’s authority to recommend justices or the president’s power to appoint them?

Underlying the dispute is resentment within the governing coalition, which controls the executive and legislature, over the Supreme Court’s decision before the presidential election to overturn Lee Jae Myung’s acquittal on election law charges and remand his case for reconsideration.

The Constitution states that Supreme Court justices are appointed by the president upon the chief justice’s recommendation and with National Assembly consent. Authority is divided among the judiciary, legislature and executive, apparently expecting cooperation. Yet the constitutional provision offers no clear answer about precedence.

In practice, Korean politics has traditionally treated the directly elected president as the supreme authority.

In May 1962, Park Chung Hee, then chairman of the Supreme Council for National Reconstruction, sent Chief Justice Cho Jin-man a memorandum accusing some judges of corruption and favoritism despite the revolution. Park became president 19 months later.

Former Chief Justice Min Bok-ki, who served for more than a decade, recalled that the military leader regarded the judiciary as little more than a military legal office subordinate to the chief of staff, with the chief justice serving a largely ceremonial function.

Thus, while separation of powers existed as formal knowledge, presidential supremacy became an unwritten political assumption.

Lee has similarly argued that Korea has a clear hierarchy of power: The people come first, followed by directly elected officials and then indirectly selected authorities.

DP lawmaker Seo Young-kyo, chair of the National Assembly’s Legislation and Judiciary Committee, went further. Calling the president the head of state, she argued that while the prime minister heads the executive, the chief justice the judiciary and the National Assembly speaker the legislature, the president bears responsibility for all three.

This effectively places the president above the branches of government, reducing the chief justice to the prime minister’s level.

Yet Korean civics textbooks depict the executive, legislature and judiciary as three vertices of a triangle, connected by arrows representing mutual checks and balances. Opposition lawmakers responded to Seo’s remarks with ridicule, questioning whether she envisioned a monarchy.

Historically, judicial independence developed more slowly than executive and legislative authority. Monarchs once exercised judicial powers themselves. The Glorious Revolution of 1688 helped establish parliamentary government in Britain and strengthened institutional constraints on executive power.

In "The Spirit of the Law" (1748), Montesquieu described judges as merely the mouths pronouncing the words of the law. He also argued that nobles should be tried by their peers in the upper chamber rather than ordinary courts. Judicial authority was understood primarily as a limited power to apply legislation.

The U.S. Supreme Court, established in 1789, likewise took 132 years to acquire its own building and another 18 years to establish a federal court administration, reflecting its historically weaker institutional position.

Alexander Hamilton, a founding father, nevertheless argued that the judiciary was incomparably the weakest branch and therefore required every possible safeguard against attacks by the other two. Its very vulnerability made independence essential.

Over time, the Supreme Court strengthened its standing through landmark rulings that earned public trust. Judicial elections in 22 states of the United States have also reflected efforts to reinforce judicial legitimacy.

Korea briefly pursued a similar experiment after the April 19 Revolution of 1960. The Second Republic introduced elections for the chief justice and Supreme Court justices, but the May 16 military coup occurred one day before voting.

Against this historical background, the current confrontation cannot simply be settled through a temporary compromise between Lee and Jo. It demands a definitive examination of constitutional checks and balances, including the prime minister’s largely nominal authority to recommend Cabinet ministers and effective mechanisms for restraining executive and legislative power.

A Constitutional Court impeachment proceeding, reportedly under consideration by the DP, might therefore offer an opportunity for rigorous debate and authoritative judgment. Public hearings would be indispensable, allowing citizens, the ultimate sovereigns, to express their views.