Many people believe that the use of the courts backfired for the Democrats. But does strategy point to a more fundamental flaw? Indeed, does it merely make martyrs out of populists around the world? Alasia Nuti and Gabriele Badano, both lecturers in politics at York University, argue liberals need to avoid using the courts to disallow their opponents and instead look beyond the state to advocate ideas that inspire grassroots politics with a positive vision of the future.

Liberals rely too much on the state to fight illiberal and anti-democratic forces and this is a strategy that is doomed to fail. In March 2025, Marine Le Pen, the leader of the French far-right party Rassemblement National, was prosecuted for the embezzlement of European parliamentary funds through an unprecedented fake jobs scheme. Found guilty of those charges, Le Pen was not only sentenced to four years in prison (with two years to be served outside jail with an electronic bracelet, and the remaining two suspended), but she was also banned from running for public office for five years, with immediate effect. Crucially, this prevents her from running for President in 2027.

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Surely, if Le Pen committed a crime, courts, one would assume, were legally bound to prosecute and eventually give her an appropriate sentence. As noted by opponents like Marine Tondelier, the leader of France's Green Party, and Olivier Faure, a prominent voice in the French Socialist Party, nobody should be above the law, not even Marine Le Pen. However, politically, this means halting the advance of a political leader who has vast popular support and was predicted to win the next presidential elections. Unsurprisingly, Le Pen immediately labelled the verdict against her a “denial of democracy”, while her right-hand man Jordan Bardella denounced it as an “execution” of democracy. Many far-right leaders across the world rallied behind Le Pen, depicting the prosecution and sentence as politically motivated. This pattern suggests a strategic error. Instead of relying on the machinery of the state, such as courts, to defeat illiberal forces, liberals should look towards the grassroots and the local, working at the same time to reinvent how their political parties operate, to erode the far-right from the ground up. 

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While Democrats generally defend the rule of law, Trump has relentlessly attacked the courts prosecuting him.

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This is, of course, not the first time in which courts have prosecuted far-right (or populist) leaders for their alleged crimes, thereby potentially contributing to neutralizing a political figure with widespread popular support. Donald Trump is the first president in US history to be criminally convicted and has several other criminal and civil cases against him. While Democrats generally defend the rule of law, Trump has relentlessly attacked the courts prosecuting him. He portrayed them as complicit with the “radical left” and the Biden administration, going so far as to categorize their strategy as “lawfare” and to threaten violence and harassment for the judges and their families. Before Le Pen and Trump, there was the Italian media tycoon and politician Silvio Berlusconi, who dominated the Italian political scene for at least 20 years, starting in the early 1990s. Over the years, he constantly depicted himself as being persecuted by politicized judges and courts (infamously labelling them toghe rosse, that is, “communist gowns”) who were only motivated by the desire to remove him from office.

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When it comes to defending liberal-democratic institutions, courts are likely to do more harm than good.

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