RUTHFULLY YOURS

“The judges of the nation are only the mouth that pronounces the words of the law, inanimate beings who can neither moderate its force nor its rigor.”
— Montesquieu, The Spirit of the Laws (1748), Book XI, Chapter VI

From Israel to the United States, via Europe, the judicial coup d’état has become permanent. In the West, it is not the executive that threatens the separation of powers. It is faceless judges lacking democratic legitimacy who legislate on the pretext of judging. Here are four salient examples of this judicial imperialism — which have become a judicial tyranny — and a proposed American solution.

Israel

In the 1980s and 1990s, the Israeli Supreme Court introduced three innovations that revolutionized Israel’s legal and political landscape. First, it abolished the “standing” requirement, allowing anyone to challenge any government decision before the Supreme Court simply because they disagreed with it, even if they were not personally affected by it. This is unique in the Western world. Second, the Court removed the restriction on justiciability, placing all government and administrative actions (including foreign affairs, military actions and the budget) under its control — an extraordinary measure. Third, the Court took on the power to assess the “reasonableness” of government decisions, thus giving itself a political veto over the elected government’s choices.

These innovations did not simply increase the power of Israel’s Supreme Court into a “super-court.” They have gradually established it as the ultimate arbiter of all questions, not only legal but also political. Any Israeli citizen — and any NGO, even one funded from abroad — has the right to ask the Supreme Court to overturn any democratic decision. The Supreme Court will grant this annulment if it deems the decision “unreasonable” or that the law is in conflict with a “Basic Law.” There is no decision of the Israeli government and parliament that cannot be overturned by unelected judges.

France

Leading in all the presidential polls, Marine Le Pen, leader of the National Rally party, has been sentenced to a five-year ban from holding public office with provisional execution — a rare occurrence — for assigning assistants paid by the European Parliament to French national tasks. Le Pen and her supporters described the decision as political, and an attack on democracy. They argued, accurately, that the judges were essentially preventing the French people from voting for Le Pen. The accusation of “government by judges” was immediately relayed, and rightly so, by figures such as Éric Zemmour and Guillaume Bigot, who denounced a judiciary seeking to influence the political course by penalizing a major opposition figure.

In January 2017, when François Fillon, former Prime Minister and presidential candidate of the Republicans party, was the favorite in the polls, the weekly newspaper Le Canard Enchaîné revealed that his wife, Penelope Fillon, had benefited from fictitious employment as a parliamentary assistant between 1998 and 2013, as well as a literary adviser to the magazine Revue des Deux Mondes. It is estimated that she received more than €1 million without any proof of actual work done. The very next day, the National Financial Prosecutor’s Office opened a preliminary investigation, followed by an indictment of François Fillon for “misappropriation of public funds”, “complicity and concealment of misuse of corporate assets”, and “failure to comply with reporting obligations”. Do Fillon’s practices seem abusive? They do. But they have been common practice for decades in France and elsewhere in Europe, and only Fillon has been judged while a candidate, then stigmatized and for years dragged through the mud.

In 2024, the Constitutional Council censured several provisions of the Immigration Act, adopted under political pressure to tighten the conditions for entry and residence in France. This censure provoked the anger of politicians, notably then Minister of the Interior Gérald Darmanin. He spoke of a “government of judges”, criticizing the Constitutional Council’s intervention, which was perceived as thwarting the will of Parliament and the government, in the name of general principles.

There is effectively no longer a single “right-wing” measure that can be adopted in any field by Parliament or the government without being struck down by the Constitutional Council or the courts. When the left loses at the ballot box, it is certain to win in the courts. In France, the judge reigns and the people no longer seem to have sovereignty over anything.

Europe

In Europe, the open-borders jurisprudence of the European Court of Human Rights obliges states to bring to Europe any illegal immigrant intercepted in the Mediterranean Sea, even ten meters from the African coast, whether a sovereign government wishes to welcome them or not.

Here are two recent examples of extreme judicial imperialism in the field of migration:

• A Malian immigrant in France, claiming to be an unaccompanied minor (UAM), had his status as a minor challenged by the French authorities after a bone scan. He was placed in a detention center and threatened with deportation. The ECHR in 2024 ruled against France for violating Article 8 (right to privacy) of the European Convention on Human Rights, finding that the age assessment was not sufficiently rigorous and that the detention was disproportionate.
• A Congolese immigrant in the United Kingdom, convicted of sexually assaulting his stepdaughter, challenged his expulsion by invoking his “right to family life.” The UK immigration tribunal ruled that his expulsion would violate Article 8 of the European Convention on Human Rights, holding that family ties took precedence over a criminal conviction.

The torrents of universal rules and requirements deriving from articles of the European Convention on Human Rights (e.g. privacy, dignity), and the rulings of the European Court of Human Rights are probably the worst modern example of tyrannical judicial imperialism. The anarchy of immigration in Europe is entirely of its making. Since the rulings of the imperial European Court of Human Rights are deemed to be the “official interpretation” of the text of the European Convention on Human Rights, they are imposed on all European states (except Russia, Belarus and Vatican City) as supreme law, which no parliamentary majority can overturn. So much for “democracy.”

American hope

For 40 years, the United States has been similarly engaged in a process of judicial usurpation of democratic sovereignty. Not only has the Supreme Court validated extremist policies, particularly racist policies (affirmative action) — recently disavowed by the Court — but for years it has been federal district court judges who, via national injunctions, have been preventing the president and Congress from pursuing the policies for which they were elected. These injunctions were not issued because the policies violated the Constitution; rather, they reflected the judges’ own political views and an effort to supersede America’s “separation of powers” – the legislative, the executive and the judicial.

On June 27, 2025, however, the Supreme Court issued a landmark ruling in Trump v CASA, Inc. by a vote of 6 to 3, limiting the power of federal district courts to issue nationwide injunctions. From now on, these injunctions, which block nationwide federal executive policies, will apply only to specific plaintiffs, and not to the entire policy nationwide. More than 600 federal district court judges in the US had been blocking executive orders from the president. The US Supreme Court decided last week that the district court judges had jurisdiction over specific cases and plaintiffs in their districts — not across the nation.

The Supreme Court decision aims to reduce judicial overreach and restore the balance of power between the executive and judicial branches. The majority, led by Justice Amy Coney Barrett, held that national injunctions exceeded the prerogatives of the courts. This ruling will make it easier to implement the policies for which Trump was elected, particularly on immigration.

Let us also not forget the costly two-year spectacle, before the 2016 presidential election, of the deliberate framing of then-presidential candidate Donald J. Trump, accusing him of colluding with Russia. Trump’s accusers, it turned out, knew all along that their claims were false. Before the 2020 presidential election, 51 former intelligence officials deliberately lied in claiming that Hunter Biden’s laptop was fraudulent, when they and the FBI knew it was real. That fraud may well have redirected that election.

The role of the judges is to enforce the law in the face of the disputes brought before them. Any attempt to legislate in place of democratic bodies is dictatorial, and a negation of national sovereignty, as well as the separation of powers.

Drieu Godefridi is a jurist (University Saint-Louis, University of Louvain), philosopher (University Saint-Louis, University of Louvain) and PhD in legal theory (Paris IV-Sorbonne). He is an entrepreneur, CEO of a European private education group and director of PAN Medias Group. He is the author of The Green Reich (2020).