The Courts and the Will of the People

“The people are behind us, we have resoundingly won the recent elections, we have drafted legislation that, if passed, would allow us to make important reforms that we were voted into office to complete. We have the votes to support our legislation. Nothing can stop us.”

“Isn’t there someone that you forgot to ask?”

Western democracies have three branches of government: executive, legislative, and judicial. Each has its own roles and duties to perform. In theory, each of the three branches are independent of one another, allowing for a system of checks and balances to prevent an erosion of democracy and forestall the rise of tyranny. It sounds so lovely!

Like everything theoretical, this separation of powers will run head-first into the brick wall of reality, leaving many with a bitter taste as to its fallout. Strict constitutionalists will insist that it’s simply too bad that the judiciary can strike down laws as being unconstitutional. They have a point. On the other hand, divisive political environments create conditions of legislative gridlock that make constitutional reform all but impossible, often for decades at a time. What are deemed “necessary reforms” and that have the backing of the popular will are then subject to the interpretation of that state’s constitution by the men and women in black aka the judiciary. This leaves that branch of government with quite a lot of power, and with human nature being as it is, permits a significant amount of partisanship to result from it.

“Permit me to issue and control the money of a nation, and I care not who makes its laws.”

This quote has been attributed to Mayer Amschel Rothschild, the incredibly wealthy founder of the banking dynasty that bears his name. Many dispute its attribution, with some claiming it to be the result of an Anti-Semitic conspiracy theory.

But like many faked quotes, there is indeed an element of truth in them. I think that there is a case to be made that the following line can also be viewed as being true:

Permit me the control of the nation’s judiciary, and I care not who makes its laws.

I am far, far away from the best person to write on this subject, which is why this entry will be a relatively short one. I have not studied law beyond the high school level, and whatever I did encounter on the subject while pursuing Political Science in university was always peripheral to where my focus was. There are some brilliant legal minds who read this Substack, so I apologize if I do make you cringe with anything that I have written up to this point, or after it as well. I hope that someone with a much better grounding in law than myself can cover the subject of this essay at length at some point in the near future. With that in mind……..

It’s hard not to notice how judiciaries in the West have stymied populist governments from trying to implement their legislative agendas, or how they seem to have been weaponized against populists themselves. We all recall how Trump was blocked over and over and over again during the early phase of his first term in office. Trump would issue some directive, and a circuit judge in a state like Hawaii would quickly rule against it, preventing it from being acted upon. In the USA, these types of judges are often described as “activist judges”:

Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint.1

Yes, they do serve as a check on power, but they “go beyond the applicable law to consider the broader societal implications of their decisions”. It’s in this overreach where subjectivity makes its presence felt, most often to the detriment of the popular will in representative democracies. My contention is that this judicial overreach creates an exploit whereby it serves as the best point of entry through which to manipulate (or even control) the affairs of state, overriding the popular will.

A case in point: Italy at present cannot deport illegal migrants from its soil despite there being overwhelming support for such a policy. The Italian Judiciary will simply not permit it, ruling any attempts at sending them to processing facilities in Albania ‘unconstitutional’:

On Monday, a Rome court ordered that seven Egyptian and Bangladeshi asylum-seekers held in a migration center in Albania must be taken back to Italy, challenging for the second time Meloni’s flagship deal with Tirana to crack down on undocumented migration.

On Oct. 18, the Rome court ruled against the detentions of other migrants from Bangladesh and Egypt in Albania, a decision which the Italian prime minister blasted as “prejudicial.”

“It is very difficult to work and try to give answers to this nation when you face opposition from part of those institutions that should help to give answers,” Meloni said referring to the court’s decision.

In a country where the majority of people distrust the judiciary, Meloni’s tough rhetoric could actually prove to be a canny political strategy — despite an avalanche of criticism from the Italian establishment.

The judiciary is standing its ground:

Following Meloni’s objection, Deputy Prosecutor of the Court of Cassation, Italy’s top court, Marco Patarnello sent an email to judicial colleagues in which he described her attacks as “dangerous” and asked the legal profession to remain united.

Parts of the email were later published by the right-wing newspaper Il Tempo and posted by Meloni on her social media as, in her view, “proof” that part of Italy’s judiciary is plotting against her.

Judges were apoplectic.

“The email was stolen from a closed circuit. They extracted three sentences and hid the rest of the text which was saying contrasting things to the narrative they intended to create, so that they could fool citizens into thinking that there is a politicized judiciary that wants to overthrow the government,” said Stefano Musolino, prosecutor and national secretary of the Democratic Judiciary, a left-leaning association of magistrates which aims to protect the judiciary’s autonomy.

“This is not the case at all, there is a judiciary that wants to protect rights and wants to do so in an autonomous and independent manner,” he added.

Here’s what I’m talking about when I say that the judiciary is the best point of entry to manipulate the affairs of state:

A report on racism and intolerance by the Council of Europe, a top human rights body, published on Oct. 22 warned against “excessive criticism of individual judges dealing with migration cases,” which it said “puts their independence at risk.”

International bodies, NGOs, and other centres of power that are not required to work on behalf ot the citizenry will rush to the defense of a country’s judiciary while it proactively works to not only oppose populism, but to crush the will of the people.

The beginning of this report gives the game away:

Italy’s prime minister has turned her fire on the country’s judiciary, even as her critics decry “dangerous” political attacks reminiscent of Hungarian strongman Viktor Orbán.

Orban is the EU’s “bad boy”, but don’t forget that Poland was sanctioned for years for trying to reform its own judiciary:

The European Commission has said it will end an EU sanctions procedure against Poland after a promise from Donald Tusk’s new government to restore the independence of the judiciary.

In an announcement on Monday, the EU executive said it no longer saw “a clear risk of a serious breach of the rule of law in Poland” and planned to withdraw the article 7 sanctions procedure that could in theory have led to Warsaw being stripped of EU voting rights.

“Today marks a new chapter for Poland,” the commission president, Ursula von der Leyen, said in a statement that congratulated Tusk and his government “on this important breakthrough”.

She added: “The ongoing restoration of the rule of law in Poland is great for the Polish people and for our union as a whole.”

Poland was sanctioned to the tune of 137 Billion EUR (!)2, and it took a change of government for the issue to be settled, as the present one surrendered to Brussels’ diktat.

Poland had sought to reform its judiciary by rolling back the retirement age of justices (thereby putting out to pasture old communist fossils), and by changing the method that it would name new judges to courts, a policy that reflected how the process works in countries like the USA and Denmark. For the EU (and the US State Department), this was not permissible, as they argued that it would “politicize” the Polish judicial system. What they really were upset about was that judges who reliably worked at the behest of Brussels in an activist role were about to be removed from the bench to make way for a new generation of justices more nationally-oriented. The fact that Brussels (with American backing) fought the Poles so hard on this issue betrays just how important that influence and/or control over the Polish judiciary was, and is, to them.

Poland capitulated, and Italy is now stuck in a deadlock.

This judicial activism tends to go one way only, and reflects trends in the US judiciary as well. Not only are activist judges striking down laws and directives issued from the executive branch, the courts have also been politicized to go after populists in a manner reminiscent of the jihad on Donald Trump.

The leader of Italy’s LEGA party, Matteo Salvini, is in danger of being sent to prison for up to six years for refusing to permit illegal migrants to dock in Italian ports:

There is still a long way to go before the final sentence, but this week’s hearing will be crucial in the Open Arms trial involving League party leader Matteo Salvini. After Italian prosecutors requested a six-year prison sentence, his lawyer Giulia Bongiorno will present her closing argument, explaining why the former interior minister is innocent.

A few days ago, Patriots for Europe’s far-right leaders rallied in support of Salvini in Pontida. His supporters have collected signatures in his defence, and a group of League party members plans to take to the streets in Palermo on Friday to show their support.

“We have decided to accompany him as we believe this is a political trial and as a political party we want to show Italians that we support our leader,” League MP Simona Loizzo told Euronews. “Most importantly, we want to emphasise that the judiciary takes advantage of these episodes for their political purposes.”

The former Interior Minister has been charged with kidnapping for refusing to allow 147 migrants, rescued by the Spanish NGO Open Arms in 2019, to disembark in Lampedusa. The all-clear to land in Italy arrived only 19 days later.

Another so-called NGO financed by your usual suspects, doing another end run around democracy, with assistance from the Italian judiciary. Salvini could be sent to prison as early as Christmas Week, simply for not allowing human traffickers to drop off their cargo on the tiny island of Lampedusa.

In another case of over-zealous political prosecution, France’s most popular candidate for the Presidency, Marine Le Pen, is in danger of seeing her candidacy for that office blocked:

Prosecutors on Wednesday asked that far-right French lawmaker Marine Le Pen be found guilty of embezzlement, sentenced to prison and barred from running for public office — including the French presidency — for the next five years.

Le Pen, her National Rally party, and 24 other individuals — including current and former French lawmakers and MEPs — are accused of illicitly using European Parliament funds to pay parliamentary assistants for work on party business rather than on EU affairs from 2004 to 2016. Le Pen and her co-defendants have all denied the charges.

Prosecutors asked that Le Pen receive the harshest sentence of all, noting that she was both an MEP and party leader while some of the crimes purportedly took place. They asked the judge to give her five years in prison, three of which would be suspended, and fine her €300,000. The ban on running for public office would extend past 2027, when the next presidential election is scheduled to take place.

Crucially, prosecutors also asked that the sentence be immediately executed, even if Le Pen were to appeal. Typically an appeal means that penalties in a case are suspended unless the presiding judge determines otherwise.

“It’s clear that the only thing the public prosecutors wanted was Marine Le Pen’s exclusion from political life,” Le Pen told reporters after court had adjourned.

This would be a political assassination, something that was tried with Donald Trump, who then went on to barely survive a physical one too.

To assume that these charges are not political is to be willingly naive in light of everything that we have seen on both sides of the pond over this past decade. Populism has cemented itself in the political life of these countries, proving that it has staying power. Unable to counter this tide in elections, the judiciary has now been mobilized to try and do what they have failed to do: override the will of the people that they themselves claim to serve.

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