What do Benyamin Netanyahu, Jair Bolsonaro, Donald Trump, Viktor Orban, Jaroslaw Kaczynski and a few other leaders or ex-leaders of democratic regimes have in common? Despite the cultural and geographic divides among them, they share a disdain for independent judges – especially those on constitutional courts.
More to the point, all of them aspire to a form of illiberal democracy and challenge the notion of the rule of law. For them, the political majority of the moment – of a president or prime minister – becomes the main basis of law. Once the electorate has cast its votes for a certain agenda, it is up to the legislative and executive branches to implement it or risk betraying the promises made to the citizens. To them, it's as simple as that.
Democracy for them boils down to elections. They might be opportunists or they might be true believers. Either way, this approach is what connects the Israeli prime minister, the former Brazilian president, the inimitable Republican candidate for the 2024 US presidential election, the head of the Hungarian government and the driving force behind Poland's ruling party. And there are others, on both the far right and the far left.
The rule of law makes them uncomfortable. It stipulates that the majority does not have all of the rights and that it must operate within a higher legal framework, which itself must also have been approved by a majority of voters. The law must be compatible with this higher legal order – the constitution, treaties and institutional acts – which is precisely intended to establish and enforce the rule of law. It accomplishes this through the separation of powers, the independence of the judiciary, respect for minorities and freedom of expression.
Judges are the guarantors of this hierarchy of standards. The system exists to restrict the power of the state by determining the limits imposed by the major principles contained in the constitution. Hence the spite, on the part of illiberal democratic leaders, for judges on supreme or constitutional courts. The movement toward illiberal democracy, wherever it may occur, is always propelled forward by attacks on these guardians of the rule of law.
Conflicts of interest
The new Netanyahu government – a coalition of right-wingers, ultranationalists and ultra-religious figures – plans not only to partially control the appointment of judges but also to reduce the power of the Supreme Court. If the court were to issue a ruling that the government did not like, elected officials could override it by a simple majority vote.
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