Christopher Caldwell writes:
Americans, living in the home of modern judicial review, will understand that judges are often guilty of trying to correct electoral results that don’t correspond to insider thinking. The civil rights laws of the 1960s, for example, have been interpreted to require transgender bathrooms, regardless of how democratic majorities might feel about them. Certain western European democracies work under analogous constraints. In Italy, both investigative magistrates (the equivalent of federal prosecutors) and adjudicative magistrates (the equivalent of federal judges) are members of the judiciary branch, and the bench, for the most part, operates as a self-perpetuating guild. Judges, not legislators or executives, appoint and approve judicial hires. Like Americans, Italians had plausible 20th-century reasons for enhancing the prerogatives of judges. Americans wanted to smash segregation. Italians wanted to ensure—in the wake of Mussolini, fascism, and defeat—that no prosecutor working on behalf of a strongman would use his office to throw political opponents in jail.
As it turned out, allowing the judiciary to be “independent” in this way was an even bigger risk. For, in Italy as in the United States, the judiciary is both a powerful regulatory body and a subset of what we now call the One Percent. Italian lawyers and judges, like our own, have a cultural affinity with intellectuals and progressive politicians. The result is that, when conservative governments come to power, the judiciary joins the opposition. Silvio Berlusconi, the madcap media billionaire who after 1994 became the longest-serving postwar Italian prime minister, was in and out of courtrooms for long-ago business irregularities for the whole two decades he was in or near power. He was convicted of tax fraud in 2013 and banned from politics for six years, until 2019.
Since the new League-Five Star coalition took power in mid-2018, Italy’s situation has paralleled that of the United States even more closely, with judges seeking ingenious ways to thwart a government they oppose on ideological grounds. A Genovese judge threatened to seize the League’s entire €49-million treasury, for an embezzlement case that antedates Salvini’s takeover of the party. After Salvini delayed the disembarkation of 177 Eritreans who had arrived aboard the Italian Coast Guard boat Diciotti, a prosecutor in Agrigento indicted him for kidnapping.
Where the United States is unloved among European populists, it is sometimes as the source of such judicial chicanery. American forces wrote or inspired a number of postwar constitutions, including the German Grundgesetz, which contains guarantees that many blame for the country’s impending “dissolution” by migration. “It is high time,” writes Frank Böckelmann, “for a constitution that is of the German people and for the German people.” For another thing, the United States tax code provides the model for various activist foundations that have left governments feeling surveilled and threatened in their sovereignty. That has been particularly so in Hungary, which in recent months has moved to close the Hungarian-born billionaire George Soros’s charities and to shutter a university he founded.
Orbán’s philosophy has been described in Western headlines as an attack on democracy. It is more accurately described as a passionate defense of his own vision of democracy. Orbán’s vision is different from the one that prevails in the West today. It is closer to the understanding of democracy that prevailed in the United States 60 years ago. For Orbán, democracy is when a sovereign people votes and chooses its destiny. Period. A democratic republic need not be liberal, or neutral as to values. It can favor Christianity or patriotism, if it so chooses, and it can even proudly call such choices “illiberal,” as Orbán did in a 2014 speech.
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