Judgment days for democracy


At a time of growing populist pressure, the apparent democratic unaccountability of the judiciary will, in all likelihood, prove to be one of its fundamental strengths rather than a weakness. The courts may now be the ultimate guarantors of the constitutional democratic order

Day after day and week after week, the courts are becoming more and more a front line of the battle to preserve democracy from populists and authoritarians. In the United States of America, the Supreme Court recently heard arguments on Colorado's highest court ruling that Donald Trump is ineligible to run in the state's presidential election, given his role in the 6 January 2021 at the Capitol. And an appeals court ruled against Trump's claim that presidents enjoy immunity for any actions taken while in office.

In addition, the state court in New York imposed a penalty of 354 million dollars on Trump for financial fraud. That amount is in addition to the $83 million awarded by a jury in the case, in which Trump was accused of defamation against a woman who successfully sued him for sexual assault. Besides barring him from holding any senior position at a New York-based company for the next three years, these two decisions are expected to leave Trump without nearly all of his available cash.

Meanwhile, across the Atlantic, the UK's Conservative government attempted to pass the Migrant Relocation Bill aimed at overriding last year's UK Supreme Court decision to overturn similar legislation. In Israel, the state's highest court recently struck down an amendment to the Basic Law that would have limited its authority. And in Germany, the Constitutional Court ruled that public funding could be denied to the far-right, anti-democratic party Die Heimat, opening the way to speculation that the same possibility could be considered for the case involving the Alternative for Germany (AfD), permanently. and the most popular.

The eligibility case before the US Supreme Court may turn out to be one of the most important in US history. After the Colorado Supreme Court ruled that Trump's role in the Jan. 6 uprising is barred from holding high office, it's inevitable that the highest court will weigh in on the case.

After accepting the case, the courts must decide whether to block Trump's return to the presidency, knowing that he promised to solve all the "madness" if they rule against him. But even if Trump's followers cause irregularities, America's system of democracy — which is designed to thwart demagogues — must stand. Conversely, if the courts reverse the Colorado decision, as seems likely, the future of American democracy could very easily be left to a handful of voters in swing states.

Courts and the law have been intertwined with American political life almost since its founding. In 1835, Alexis de Tocqueville observed that "hardly any question is raised in the United States that is not settled, sooner or later, in a court case." This is not an exaggeration. In 1803, the Supreme Court asserted its authority to review and, if necessary, overturn legislation, making it the final arbiter of the meaning and requirements of the US Constitution.

Although America has long been the world's preeminent democracy, few other countries have adopted its judicial model. Within the US, the Court's sovereignty is almost taken for granted, with only the occasional murmur of dissent. But many observers elsewhere are troubled by the idea that only a few men and women in black coats can decide on, say, the creation of a national bank or the legality of slavery.

While almost every democratic country has a constitutional court, few are as politically charged as America's. Instead, they are expected to submit to elected officials.

And yet, populist politicians have increasingly strained the constitutional orders of many countries, leading to more instances in which courts see themselves in new ways. A good example of this is the right-wing Israeli administration's attempt to prevent the country's Supreme Court from examining "the reasonableness of a decision of the Government, the Prime Minister or any other minister".

Last month, Israel's Supreme Court overturned this law. Following in the footsteps of its American counterparts, the justice ruled that the Court – not the Knesset, not the Government and not the president – ​​is the highest authority regarding the meaning and requirements of Israel's Basic Laws.

In the UK, where the courts have long been described as "lions under the throne", last year's decision to strike down the government's Migrant Resettlement Act suggested that justice will emerge from the shadows whenever needed. The government's attempt to return asylum seekers to Rwanda, the court ruled, constitutes a breach of both international law and local laws, because - contrary to what the Home Office claims - Rwanda does not qualify as a safe country for resettlement. .

It is not clear what will happen if Prime Minister Rishi Sunak's government succeeds in passing the Bill declaring Ruana "safe", simply because no British government has ever adopted legislation whose sole purpose is to deny reality. (In fact, Rwandans seeking political asylum in the UK already outnumber those the UK is trying to send to Rwanda).

If the traditional British view of parliamentary sovereignty holds, the Supreme Court will be obliged to accept this Liza-in-Wonderland-type result. However, even if the judiciary proves unwilling to overturn the constitutional situation in this specific case, the wider shift in judicial power is clear, both in Britain and internationally.

To survive this period of populist attacks on the democratic order, the courts will have to embrace their role as arbiters of justice. They know that their decisions cannot be left to the emotional whims of a Trump or a Boris Johnson. They must follow reason, precedent and the law.

At a time of growing populist pressure, the judiciary's apparent democratic unaccountability will, in all likelihood, prove to be one of its fundamental strengths rather than a weakness. They may now be the last guarantors of the constitutional democratic order.

(Nicholas Reed Langen, a constitutional scholar, is editor of the LSE Public Policy Review and has written on the British Constitution for The Justice Gap. This review was written exclusively for the global journalism network Project Syndicate, of which the Daily Time").