Meloni moves to restrict power of activist judiciary

The government of Italy’s Giorgia Meloni is now the third-longest in the history of the post-war Italian republic. Her polling has been stable, with Meloni’s Brothers of Italy hovering at the 30 per cent mark for the entirety of her time in office. For a country whose prime ministers last, on average, just over a year, this is no easy feat.

Meloni was partially able to achieve this by spending many of her first few years placating her moderate coalition allies and Brussels establishmentarians, a move which enabled her to get past initial scepticism of her party’s far-right sympathies. At the same time, she was able quietly to enact socially conservative wins and lay groundwork for a pan-Western nationalism. 

But now that she is firmly ensconced, she has set her sights on making significant changes to Italian law. And while some have made a splash – such as one which restricts the ability of protestors to block traffic and cause commotions – her largest move to date has dwarfed them all: A reconfiguration of Italy’s judiciary.

The legislation, which has now passed the Italian Senate, would reshape Italy’s judicial system by banning prosecutors and judges from switching roles throughout their career. Italian prosecutors and judges also are currently allowed to police themselves; oversight is conducted by a council to which members of the judiciary can be elected. The council would be split in half and its members would be selected at random, rather than election (which allows outside lobbying, as the judiciary is dominated by activist judges).

This move has infuriated the opposition, which has claimed the government is seeking to “put itself above the laws and the constitution.” Which is odd, as the law does little actually to restrict the power of judges. It also is not even law yet: As Meloni’s government does not have a two-thirds majority, the law will go before the people in a referendum early next year. All in all, a pretty milquetoast move: Italy’s people will be asked moderately to restrict judicial shoulder-rubbing. Why, then, is there such fury?

Before answering that question, it’s worth hopping around Europe, because Italy is not the only place where populists have gone to war with judges. Austria’s judicial system has kept populist politicians under investigation – while leaking saucy, supposedly private, details to friends in the press – for years on end, and the judicial system even drove Sebastian Kurz out of office without him even being convicted of a crime. Romania’s constitutional court banned a nationalist from running because voters had a “right to be informed” – and obviously, no informed voter could vote for a nationalist.

A member of Germany’s AfD were prosecuted for pointing out that Afghan migrants commit gang rapes at higher rates than others. Instead of looking into whether there may be some issues with any system which would levy such a prosecution, Germany’s outgoing elected officials changed the rules to “protect” the judiciary from any parties which may win power.

In some places, populists have managed to eke out victories – or at least, they seemed to. That was the case in Poland, where the Conservative Law & Justice party were able to appoint judges who the opposition claimed were “political.” Then, the court made decisions which were derided as “political,” such as ruling most abortions illegal. Prime Minister Donald Tusk’s government has simply taken to ignoring these judges outright, claiming that they are – you guessed it – political, and that they were wrongly appointed.

This verbal two-step is not unique to Poland. Establishmentarians everywhere – including in the United States – love to pretend that all judges are, by default, non-political – until a judge is appointed by a populist, whereby they become rabidly political forces who must be ignored. But this is, of course, untrue: There is zero chance that establishmentarians would be putting judges into office who will regularly rule against them. They, like any other politician, are putting in judges who will uphold their own way of thinking; In Tusk’s case, it’s progressive democracy. 

This is why there is such immense fury at what seems to be a relatively simple change to Italian law: Because anything which weakens the power of the judicial system, or breaks up its establishment-approved configuration, is a threat to the established order. Populists have always existed, and establishments have, from time to time, lost power briefly; but in the past, they have been able to rely upon judges as a backstop until they can get back into power. This is why last year’s reveal that an Italian judge had called Meloni “dangerous” because there were no investigations against her was extremely damaging: Because it pulled back the curtain on just how political so-called “independent” judges are.

The more threatened an establishment is, the less likely they are to listen to judges, particularly those appointed by populists. Tusk already has had to deal with two nationalistic presidents opposed to his policies; if he listened to a court which had been appointed by opponents, he would get even less done than he already is (which is not much).

So what’s the play for the populists, if Law & Justice’s judges are being ignored? The answer is moves like Meloni has made: Weaken the power of the judiciary to fraternise and to create their own networks. In cases like Viktor Orbán, when you have the power for a long period of time, they should use it to fill the judiciary with like-minded figures; FDR in the United States did the same when he filled the Supreme Court with appointees.

But, if possible, populists should consider going farther, by curbing excess power of the judiciary. Establishment judges throughout the West have, as populists have gained power, dramatically expanded their own. This occurred at a record pace in the United States, as district judges – who are often in charge of small geographical areas – have made law for the entire country. Likewise for figures like Brazil’s Alexandre de Moraes, who has been accused of expanding his power so greatly as to effectively become an unelected national leader.

By curbing this excess power, the issue becomes moot. Judges should not be able to make national law wholesale and with impunity. If we are to live in a democracy, the victors – including populists – must be allowed actually to govern.