The article's central argument is that courts in many countries are increasingly overstepping their boundaries and encroaching upon the political process, ostensibly to protect democracy but actually undermining it. This is illustrated through examples such as the French court's barring of Marine Le Pen from elections and attempts to exclude Donald Trump from the American election.
These examples highlight a worrying trend of courts becoming active political players, shaping political outcomes rather than upholding the rule of law.
The author expresses concern that this judicial overreach undermines democratic principles. The exclusion of candidates from elections based on judicial decisions, regardless of their legality, is viewed as a form of paternalistic control that disregards citizen's choice. The article emphasizes that the judiciary should not dictate who can participate in the democratic process.
The article suggests that a lack of trust in the electorate is a driving force behind judicial overreach. Societies with low public trust tend to rely more on judicial intervention, viewing citizens as incapable of making sound political decisions. This lack of trust is especially apparent in Germany, a country with a strong tradition of judicial influence in politics.
The article points to the historical context of post-WWII Germany, particularly the strong judiciary established to prevent a recurrence of past political failures. This model has influenced other democracies, leading to similar trends of judicial activism worldwide. The author criticizes this approach, arguing it leads to a 'cramped' and fearful democracy.
The influence of supranational courts like the European Court of Justice and the European Court of Human Rights is also considered. The authors suggests that these courts further complicate the balance between law and politics, leading to increased judicial influence and a potential crisis of democratic legitimacy. The 'Klima-Seniorinnen' case in Switzerland is highlighted as an example.
The article concludes that a healthy democracy requires a strong parliament and informed public engagement leading to social consensus, not decisions made solely by judges. The author emphasizes that the decisions on who can participate in elections is inherently political and the final say should rest with the electorate. The Swiss model, which lacks a constitutional court, is presented as a possible alternative approach.