Judges versus politicians: does anyone win?

By: Ricardo Israel - 06/04/2025

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The confrontation between judicial and political authorities is taking place today in countries as diverse as the United States, France, Israel, Brazil, Guatemala, Romania, Georgia, and several others. In this regard, the answer to the question is that no one wins, neither the judicial nor the political authorities.

On the contrary, there are clear losers: democracy, republican institutions, the separation of powers, equality before the law, the rule of law—that is, the very legacy of the Enlightenment, that formidable process that, beginning in the 18th century, represented the best of the Western idea, of the primacy of reason and the civilizing record it brought to the world.

The underlying theme is that in complex societies such as the democracies of the 21st century, power is not only found in the State, but is distributed throughout society, so power should not only be conceived as the ability to force another person to obey, but also becomes relational and not always vertical, so in modern societies, in one lifetime we can have as much power over others as others have over us, simultaneously dominant and dominated, although certainly some more than others.

When it comes to power between individuals, we must not only consider the obvious cases of a general, a minister, or a manager, but also the judge and the teacher. The latter with a student in the classroom and a judge with a defendant in court, as both are inherently asymmetrical situations, although they are not always seen that way.

Indeed, political authorities can express opinions, threaten, or shout, but it's a judge who, within his or her working day and as part of it, if the law so authorizes, can send people to jail or force them to pay fines or debts. It's hard to find judges who don't have favorite ideas about how to organize society, nor do they, like everyone else, hold their own beliefs, whether religious or secular. It's even healthy that this is the case, since we would be worse off with judges who don't believe in anything.

The problem arises when they try to impose their views, which is unacceptable and punishable by law. As this is rare, there is usually a non-ideological, non-politicized, but very legitimate side to this debate, and it fortunately predominates. Most judges do not impose their personal criteria, but are generally divided between "originalist" judges and "evolutionist" judges. The former are those who base their views on the ideas of those who created a rule or institution, without attempting to distort its original meaning, and simply apply them to the case they must decide. The latter have a vision of law that seeks to adapt a rule or institution not to the criteria of the past, but to those of the times in which they live, so their demands lie in understanding the new context.

In general, the first view is linked to conservative thought, and the second to progressive thought, and various studies conclude that conservatives would be more reluctant to incorporate new developments in their interpretation or the basis of their rulings, unlike progressives who see it as a mandate, in whose conception of law, tradition does not oblige them to follow previously traveled paths.

Both views are legitimate, so the greatest damage to the function of judging is done by so-called judicial activism, that is, judges who feel such moral superiority that they believe they can supplant the popular will of the voters and also disregard, bypassing Congress and the executive branch, that is, overriding one of the most important foundations of republican institutions and democracy: the separation of powers.

The question that always arises is why these types of judges don't seek legitimacy where it belongs, since they should be running for election and entering politics. In any case, it's not always black and white, as reality shows that there are cases where activism has been successful and beneficial, especially when a court ruling opens avenues for solutions for society, under conditions where the balance of political power creates gridlock in Congress.

One of my favorite examples took place in the US, where the Supreme Court was years ahead of other branches of government on the issue of racial and social equality in the 1950s, ordering racial integration in public schools and transportation due to widespread discrimination. This was only later followed by the Civil Rights Act and anti-discrimination legislation in the following decade.

Although my professional life has been primarily linked to research and university teaching, I feel fortunate to be able to comment on this topic of judges and politicians, as I had the opportunity to serve for a limited time in both the judiciary and politics in Chile, both as a judge and as a candidate for elected office. These opportunities taught me things that cannot be learned in books.

As a politician, I had the opportunity to compete in two elections, losing for president of the Republic and for mayor of Santiago. In the judicial field, I served as a judge on a Court of Appeals and as a justice of the Constitutional Court. These two experiences gave me a great respect for the role of judging, as distinct from each other. I say this because while I served as a judge on the Court, due to the type of matters decided, I was often unable to sleep well, faced with having to rule on the freedom of other people the next morning.

If that was my facet as a lawyer, as a political scientist for many years I taught at universities in several countries that the so-called Republic of Judges was one of the (worst) deviations of democracy, especially when there were magistrates who, instead of applying the existing law, created a new one to resolve a dispute with their own ideas, thus affecting the democratic character of a country, since in fact they supplanted the legislature and the electorate, and the latter could do nothing about it. In a different vein, the name does not only appear in law and political science, since there is also a religious version of the subject in the Old Testament (the Hebrew Tanakh), where one of the historical books is called thus: "The Book of Judges."

However, in the cases of the countries mentioned at the beginning of this column, what we are witnessing today is not black and white, but rather a variation of gray, since what is taking place in no way appears to be a situation of good versus evil. My doubt is which path best prevents other deviations from democracy as negative as the so-called Republic or the Government of the Inept known as Cacocracy: whether by better educating voters, having better institutions that protect democracy, or accepting judges empowered to protect freedoms, preventing an excess of bad decisions by those elected to public office.

This is no small issue, as we live in a time where dissatisfaction with political leaders and parties is growing practically everywhere. There is also criticism of the distance between those in power and ordinary people, the enrichment of those who have been elected, and a constant comparison with the past, where many are convinced that political leaders were more honest, educated, and made better decisions in times past—sometimes these are mere assumptions rather than verifiable facts.

We're talking about democracies, not authoritarianism. In Latin America, we highlight the case of the Castro-Chavista dictatorships, which have become tyrannical autocracies, taking over governments from within to install dictatorships via a new constitution. And I wish that in cases like Venezuela, there were international punishments for what are known as crimes against democracy, when elections are simply stolen, as Maduro did last year. Therefore, we're talking about democracies, good or insufficient, but democracies, nonetheless.

It's in democracies that it makes sense to talk about these confrontations, since dictatorships have a monopoly on power. It's in democracy that a distinction can be made between democracy and a republic, since they are not the same. There may be countries, like the United States, that were a republic before becoming a democracy, so much so that they have always defined themselves as a democratic republic, with a republic being equivalent to the institutions and their functioning.

Of course, there are cases of judges who gain such notoriety that they seem to feel not only more important than the judicial institution itself, but also superior to their colleagues in the judiciary. This was the case of Baltasar Garzón in Spain, who, after flirting with politics, gained international acclaim when he requested the arrest of General Pinochet in London. However, he later spiraled into a frenzy that led the Supreme Court to convict him of malfeasance and sentence him to eleven years of disqualification as a judge. He claimed responsibility for cases being handled by other fellow judges, illegally intervened in defense attorneys, and used funds borrowed from a banking foundation for teaching purposes for personal gain.

Are there any similar cases? Although no one has charged him with any crime, it's possible that Judge Alexandre de Moraes in Brazil is currently following a path of fascination with public notoriety, leading him to enter into similar conflict with colleagues who do their work without falling into the same controversies.

The judicial function is so important that it must be protected at all costs, first and foremost by the judiciary itself, to avoid the constant temptation of the political world to usurp its powers and obtain favorable rulings. The best way is for judges to always speak through their rulings, not through the press or social media, or through pointless polemics. The reason is only one: judges are always the last bulwark against authoritarian temptations.

And as a form of republican and democratic organization, the world has known nothing better than the doctrine of the separation of powers, although the United States is a special case, as it has superior protection through what is constitutionally known as "Checks and Balances," that is, checks and balances, always mutual, today, as at other times in its history, subject to tensions and tests.

The doctrine of separation of powers has undergone its own evolution, and today, in many democracies, it is complemented by a reality where elements of interdependence abound, a path that also includes convergences at both high and low levels. This is commonly seen in diverse collaborations, such as appointments to Supreme Courts and Constitutional Tribunals, where the legislative and executive branches usually participate in addition to the institution itself.

Ultimately, no easy answer has been found to this problem of the relationship between judges and politicians, since democracy is a human construct that often suffers crises. But the important thing is that it is always improvable and perfectible, and no single best solution has been found, as Winston Churchill was fond of reminding us. In fact, on many issues, we have not overcome the ancient debate of the Athenian Greeks about the differing proposals of Plato and Aristotle, that is, whether the best decisions were made by an individual or by a collective, whether the Platonic formula of the philosopher-king was better or the Aristotelian demos, usually an Assembly at that time.

In fact, there isn't enough evidence to conclude whether it's beneficial for a democracy to elect judges or prosecutors, given the highly sensitive nature of their duties. Personally, I don't like it, although the degree of politicization varies depending on whether the judges are handling minor or very local issues or the highest representatives of the judiciary. This is evident in Mexico's decision to imitate Bolivia by electing different levels of judges.

In the United States, some form of popular vote is elected in 43 of the 50 states. There are four different methods, although it has never reached the federal Supreme Court, which retains the participation of the president and the Senate in appointment and confirmation, respectively. Although members of the Supreme Courts of some states are elected, with several allowing it.

Just recently, a member of the Wisconsin State Supreme Court was elected by popular vote, making national news for the simple reason that he will be the deciding vote in polarized conditions. Not only was there interest, but nearly $100 million was spent.

It wasn't much different from any presidential or congressional election, as the candidates defined themselves in terms of right and left, as well as self-proclaiming themselves as conservative versus liberal, and Susan Crowford, a leading exponent of the latter, won. During the campaign, both announced how they would vote on highly public issues and cases, from the electoral system to abortion.

Watching those debates on TV, I was reminded of that representation of justice with a blindfold on, and I didn't see that blind justice anywhere. I also always learned that a judge could never anticipate how he or she would vote, not even for reasons of transparency, since his or her first obligation was to provide guarantees to the parties. I was always taught that anticipating an opinion on cases where the parties hadn't been heard required recusals to avoid a skewed administration of justice. In fact, it was a campaign that often gave the impression of being more of a plebiscite on Trump than the election of a judge.

In the current era, the relationship between judges and politicians has become extremely complicated due to the increasingly widespread use of a serious distortion of justice and the law: lawfare, that is, legal warfare or guerrilla warfare, where the administration of justice is manipulated to persecute political rivals. Examples of this abound. For example, Evo Morales with President Jeanine Añez in Bolivia, and it could be happening with Lula in Brazil through the use of allies appointed by him on the Supreme Court.

The use of lawfare greatly affects democracy, so it is vital to emphasize that it is the opposite of the law, defined by Don Andrés Bello as the legitimate mandate that "commands, prohibits, and permits," while lawfare is the illegitimate use of the legal system for the purpose of intimidating or disqualifying an adversary.

In the era we live in, it is also not entirely clear who is responsible for prosecuting political crimes, which are distinct from common crimes committed by politicians: whether it should be the Supreme Court or the Constitutional Court, or both. This problem does not exist in the United States, since both functions are vested in the Supreme Court, the only judicial institution named in the Constitution.

At the same time, the recent French court ruling against Marine Le Pen, banning her from running for office, is already beginning to shape the upcoming presidential campaign. It is therefore worth asking whether court rulings affecting politicians should carry the additional penalty of being barred from running in elections, or perhaps this should be resolved by a political body like Congress. For some, what happened is positive, as it would help curb corruption, while others are concerned, as in polarized environments it can have the opposite effect than intended. Still others compare such cases to countries where the judiciary is not impartial.

In any case, if anything harms democracy, it's the mere suspicion of intentions. Therefore, in the situation of the aforementioned countries, it seems that even treating politicians like any other citizen isn't enough, since in France the origin of this 2016 law was the impunity in cases like that of former President Chirac. Apparently, the bar is being raised for sentencing judges, as everything indicates that they will also have to consider in the future whether there are additional sentences that affect governance and democracy, as well as the relationship between politics and the judiciary, which will surely figure in the appeal to a higher court.

Ultimately, the relationship between judges and politicians is so vital to a democracy that politicians should resolve their own problems. If it's suspected that judges are concerned with situations whose resolution ultimately falls to voters, everyone could end up mired in the mud, including the judges themselves, undoubtedly affecting democracy and republican institutions. And that's the difference with justice, whose interest lies in determining guilt or innocence.

Furthermore, the judicialization promoted by the Democrats, in Trump's case, ended up being a boon for his return to the White House.

@israelzipper

Master's and PhD in Political Science (University of Essex), Bachelor of Laws (University of Barcelona), Lawyer (University of Chile), former presidential candidate (Chile, 2013)

«The opinions published herein are the sole responsibility of its author».