An old joke tells of a man who finds a magic lamp, summons the genie and is offered the statutory three wishes. “First, I want a world without lawyers,” he says. “Done,” says the genie who then turns to leave. “What about my other two wishes,” the man protests. The genie replies, “sue me”. In a liberal democracy, the rule of law remains society’s ultimate protection — and you notice when it’s gone.
Not everyone shares this view. The corruption of the judiciary is the “long con of the left”, declared Elon Musk after failing to swing an election for a state supreme court justice by flooding the contest with cash. By corruption he means rulings that go against his side. But then subjugating the judges is a sine qua non of demagogues.
In the US, President Donald Trump’s assault on the judiciary and legal profession has gathered pace as he targets and intimidates judges who block his executive orders and lawyers who take cases that run against his interests or ideals.
Meanwhile, European politicians are this week fretting over the criminal conviction that has led to Marine Le Pen, the French far-right presidential frontrunner, being blocked from standing in the next election. Liberal-minded commentators worry that her claims of a stitch-up will undermine faith in the law and build support for her. Few question her guilt or dispute it was a fair trial but they debate, as they did with Trump, the unverifiable political impact of enforcing the law on major politicians.
The prosecution of political leaders is not exceptional in France. Alain Juppé, a former prime minister, was convicted of comparable crimes and suspended from seeking high office. Former presidents Jacques Chirac and Nicolas Sarkozy were prosecuted and convicted, as was Roland Dumas, former foreign minister. Nonetheless, Le Pen’s sentence and conviction were denounced by Trump, Viktor Orbán and other celebrated champions of democracy such as the Kremlin. (Trump seemed less exercised by the more egregious jailing without trial and electoral ban of the main rival to Turkey’s president Recep Tayyip Erdoğan).
There is no doubt the Le Pen case will cause political turmoil in France. Some argue that the ban is wrong and choice should be left to voters. A more reasonable response is an accelerated appeals process, which now appears likely, to give her the chance to overturn the suspension before the presidential election.
A common theme that emerges any time a court ruling goes against a populist leader is fear of a political backlash against the judiciary. Le Pen’s righteous self-pity saw her absurdly likening herself to Alexei Navalny. The presiding judge in the case has been given police protection after Le Pen’s deputy railed against the “tyranny” of the judges.
But focusing on a backlash engineered by her supporters is to view this through the wrong end of the telescope. The greater danger to society comes when it shrinks from upholding the law. Those seeking special consideration for Le Pen are essentially arguing that some people are above the rules. To abdicate responsibility for enforcing the law begins the slide into political chaos. (How might the US look now if Republicans in Congress had not funked impeaching Trump over the riots of January 6 2021?)
But there is a larger point to grasp. This is a fight populists seek. Their political model explicitly aims to undermine faith in an independent judiciary.
From the US to Israel, Hungary to Turkey, a unifying theme of leaders sliding away from democratic norms is a concerted attack on the courts. It is the playbook of every populist strongman (or woman) seeking to march their country away from liberal democracy.
Even populists not intending so dramatic a breach bridle against independent judges because they are the final brake on their power. In the UK, witness the fury of Brexiters when the Supreme Court quashed Boris Johnson’s unlawful prorogation of parliament. And since these parties have less respect for the institutions of the law, it is no surprise that their leaders are more likely to fall foul of it themselves.
This assault on the legal system pits direct democracy against constitutional democracy. The talk is always of reclaiming the supremacy of elected politicians — though invariably there is only one supremo. The populist playbook demands the weakening of judges who might frustrate the will of the nation as embodied in their elected tribunes. To put it another way it’s a case of “Me the People”.
Hence the routine attacks depicting the legal system as corrupt, partisan and out of touch. Opponents will seek to oust uncooperative judges and demand new powers over judicial appointments. The jurisdiction of international courts is similarly undermined.
This is not to pretend any judicial system in any country is perfect. Judges make mistakes or over-reach. That is one reason why we have an appeals system. Politicians step in to amend laws that have unintended impacts. But there is a world of difference between good faith interventions by those who support an independent judiciary and those whose efforts are intended to weaken the system.
However frustrating the courts may be, better the occasional errors of a free judiciary than the chaos of a cowering legal system. The law is constitutional democracy’s final and greatest bulwark against political abuse and corruption. If that citadel falls, it’s game over.
robert.shrimsley@ft.com
