Where is democracy? Unelected establishment judges now stand against elected populists

Stop me if you’ve heard this one before: a right-populist walks into office. The unelected judiciary says, “We’re investigating you!”

If you don’t find the punchline funny, don’t worry: Italy’s Giorgia Meloni doesn’t either. After a judge’s email leaked last year revealing that there was consternation amongst the Italian judiciary that there were no investigations against her – it made her “more dangerous” in the judge’s leaked parlance – it was almost a certainty that, sooner or later, they would find a way to launch some sort of investigation. And lo-and-behold, they have, after Meloni released a Libyan warlord wanted by the International Criminal Court back to his home country.

Meloni has pledged to fight the investigation, saying, “When the security of the nation and the interest of Italians are at stake, there is no room for backward steps. Straight on our way.” The good news for her is that she does not have much to worry about: even if the investigators deem there is enough evidence for prosecution, she cannot be punished without the parliament lifting her immunity – something it is not going to do.

But she has not been so fortunate elsewhere; this is not the first tussle Meloni has had with Italy’s judiciary. Judges have repeatedly ruled against her attempts to deport migrants temporarily to third-party processing stations in Albania, rulings she has also pushed back against.

Italy’s judges mirror a judiciary run amok across the West. In neighbouring Austria, populist-right Freedom Party leader Herbert Kickl has been under investigation since last year, being “suspected” of delivering false testimony to a parliamentary committee. It was under similar auspices that former populist-ish Chancellor Sebastian Kurz was investigated and found guilty.

Going east, Romania’s constitutional court banned right-populist Călin Georgescu from running for president after cancelling last year’s presidential elections (the first round of which Georgescu had won). Their reasoning was that “voters’ freedom to form an opinion includes the right to be properly informed before making a decision,” and because someone (it is unclear if it was Russia or in fact a centrist establishmentarian party) bought up TikTok accounts, it meant the voters’ right to be properly informed was violated.

This borders on Orwellian – it seems that the court simply did not believe that a properly-informed population could support Georgescu, and therefore deemed them uninformed – but it nonetheless holds legal water there. And he, of course, is now under investigation for a myriad of cases.

To the north, Polish Prime Minister Donald Tusk has waged a judicial war on members of the opposition Law and Justice party, including even against his predecessor, Mateusz Morawiecki, for attempting to organise an election with solely postal votes during COVID-19. Morawiecki is now awaiting trial.

Cutting west, France’s Marine Le Pen is waiting to find out if she will be banned from seeking office for claims of embezzlement.

And of course, it goes without saying that the Biden administration conducted a campaign of lawfare against now-President Donald Trump, seeking to make it so he would be too seriously damaged to run in 2024 (former President Joe Biden was reportedly “fuming” that Trump was not being investigated more quickly). And district-level federal court judges – some responsible for a part of a state, no more – are attempting to override practically anything Trump is doing on a national level, from eliminating DEI programs to deporting violent Venezuelan gang members.

Now, this is not to suggest that no populist can ever do wrong; such partisanship would border on hackery. But practically all of the major populist leaders are committing crimes? Really? One does not need the pattern recognition of a supercomputer to see the reality of what’s happening here. Establishment-friendly judges are now the last line of defence against democratically elected populists.

Which explains the outrage and fury whenever the intentions of these judges are questioned, be they Italian, American, French, Romanian, or otherwise. It also explains the fury when they are replaced. Cries of a “Trump Court” rang out in Washington when Trump was able to nominate three Supreme Court justices in his first term; two more this time around would have him become the first president since Dwight D. Eisenhower, in the 1950s to appoint a majority.

And Brussels has gone after Hungary’s Viktor Orbán time and time again for allegedly  warping his country’s judiciary in his favour and violating the rule of law. The reality, of course, is different. Orbán and his party have won elections since 2010; that year, they won a supermajority, allowing them to make constitutional changes. They have continued to win. As a result they have, over the last 15 years, placed most major judges. Had Orbán been a progressive, pro-EU government, he would be compared to Franklin D. Roosevelt. FDR reshaped America’s government and appointed an overwhelming majority of Supreme Court justices after having been elected four times to the presidency and is a progressive hero. But Orbán, for daring to go against the will of the liberal democratic international order, is cast as a villain for doing the same.

Now, there is an increasing push in the American Right for some of the lower-court district judges to be ignored outright. The White House denied violating a judge’s order when it came to the Venezuelans, arguing that the judge did not have the constitutional authority to act.

The dispute will surely end up at the Supreme Court, which will hopefully put a stop to these district judges run amok. Likewise, Meloni’s investigation will be blocked by parliament, and even if Le Pen is banned, it will not stop the populist-right in France from running someone like Jordan Bardella for president in 2027.

But in times when practically any poll shows voters are losing trust in government, perhaps these judges should consider whether their actions – blocking elected leaders from solving major issues, like migration, which they specifically campaigned on – are increasing that distrust. Because if push comes to shove, and voters need to choose between the unelected judicial bureaucracy or elected representatives, they are likely not going to choose the judicial bureaucracy. An elected official, after all, can call upon their election to claim legitimacy. A judge can only call upon trust in the system. And that trust is starting to run a little low – so judges should be wary of reducing it further.