Judicial Activism and the Crisis for Democracy

Democracy rests on a simple principle: governments are chosen by voters and removed by voters.

Increasingly, however, political battles are being fought through another avenue. When opponents cannot be defeated at the ballot box, they are pursued through prosecutors, commissions, tribunals and courts. Elections become only one front in a broader struggle for power.

Call it lawfare. Call it the judicialisation of politics. Whatever the label, the trend is becoming impossible to ignore.

Israel provides perhaps the clearest example.

For more than six years, Benjamin Netanyahu has governed under the shadow of criminal proceedings that have transformed Israeli politics. Investigations that began under former State Attorney Shai Nitzan eventually led former Attorney General Avichai Mandelblit to approve an indictment. Since then, the case has continued through years of courtroom proceedings.

Netanyahu’s supporters argue that the charges rely on unprecedented legal theories, particularly the claim that favourable media coverage can amount to bribery. They contend that political conduct previously considered part of democratic competition has been criminalised. His critics argue that no public official, regardless of popularity or position, should be above the law.

The courts will ultimately decide the legal merits.

The political consequences, however, are already evident.

Israel experienced repeated elections, prolonged uncertainty and years of predictions that Netanyahu’s political career was finished. Yet voters repeatedly returned him to power.

Again and again, the electorate delivered its verdict.

Again and again, the legal process continued.

For many Israelis, this created the perception that when a leader could not be removed by voters, other institutions were being used to achieve the same outcome.

That perception is politically significant, regardless of one’s view of Netanyahu.

Israel also demonstrates the broader consequences of prolonged political warfare. Years of legal battles, constitutional disputes and mass protests contributed to one of the most divided periods in the country’s modern history. Many Israelis argue that this internal conflict weakened national cohesion and projected vulnerability to external enemies.

Whether domestic instability influenced Hamas’s calculations before the atrocities of October 7 remains debated. But the wider lesson is clear: societies consumed by internal political conflict risk diverting attention and resources away from the challenges beyond their borders.

The United States has experienced a similar dynamic.

Donald Trump faced multiple criminal prosecutions while campaigning to return to the White House. His opponents argued that the justice system was simply applying the law equally. His supporters believed prosecutors had become political actors attempting to achieve through courts what Democrats had failed to achieve through elections.

The critical issue is not merely which interpretation is correct.

It is the loss of trust that follows when large sections of society believe institutions have become politically motivated.

A democracy depends not only on justice being done, but on citizens believing that justice is being applied fairly.

Once courts, prosecutors and regulatory bodies are viewed through a partisan lens, every investigation becomes a political battle and every legal proceeding becomes another election campaign by other means.

A contrasting example can be found in Britain, where political accountability has at times been tested directly through voters. When Nigel Farage resigned as leader of Reform UK and triggered a by-election, he placed his political future before the electorate. Supporters saw this as democracy working properly: politicians answer to the people who elect them.

Critics argued that elections are only one part of accountability and that public figures must also face scrutiny from journalists, institutions and civil society.

Both arguments contain truth.

A healthy democracy requires scrutiny beyond elections. But it also requires recognition that voters—not commentators, activists or political opponents—ultimately determine who governs.

When political legitimacy increasingly depends on campaigns to discredit, exclude or remove opponents outside the electoral process, public faith in democracy itself begins to weaken.

This debate is not confined to Jerusalem, Washington or London. Australia faces similar questions about the relationship between politics, institutions and public trust.

Australia has not experienced legal warfare on the scale seen in Israel or the United States. But many Australians perceive another imbalance: not necessarily unequal justice, but unequal outrage.

Controversies involving politicians on the left are often met with demands for context, explanation and understanding. Similar controversies involving conservatives can attract immediate calls for resignation, investigations and condemnation.

Whether that perception is entirely fair is less important than the fact that many citizens believe it exists.

Political standards must be applied consistently. A democracy cannot maintain public confidence if citizens believe ideology determines whether wrongdoing is excused or condemned.

Australia has also undergone a broader cultural shift. Debates surrounding identity politics, diversity frameworks and institutional approaches to race and gender have become increasingly prominent across universities, public organisations and parts of the corporate sector.

Supporters argue these approaches address historical disadvantage and promote fairness. Critics argue they risk dividing citizens into competing identity groups and replacing shared national values with endless disputes over representation and grievance.

Whatever one’s position, the political consequences are visible.

The rise of movements such as One Nation reflects a growing number of Australians who believe mainstream political and cultural institutions no longer represent their concerns. Dismissing these voters as ignorant or prejudiced may be politically convenient, but it does little to explain why their support persists.

Social cohesion cannot survive if citizens believe different rules apply depending on political identity.

Democracy requires disagreement, but disagreement must occur within a shared framework of trust. When citizens begin appealing to institutions rather than persuading fellow citizens, the democratic compact becomes weaker.

The rule of law depends on impartiality. Public confidence depends on consistency.

No politician should be above the law. Where credible evidence of wrongdoing exists, investigations should proceed without fear or favour.

But accountability must apply in both directions.

When powerful institutions launch investigations, pursue allegations and shape public perceptions, there must also be consideration of the consequences when claims fail or allegations prove unfounded. Political careers can be damaged, reputations permanently altered and public trust diminished long before any verdict is reached.

In modern politics, accusation itself can become a form of punishment.

Those who wield the power of the state must therefore exercise it responsibly. Prosecutors should not become a substitute opposition. Courts should not become a venue where elections are replayed after voters have already spoken.

Democracy functions because elections determine who governs.

Courts determine guilt.

Confusing those roles threatens both.

The danger extends beyond any individual politician. It is larger than Netanyahu, Trump or Australia’s domestic political disputes.

The central question is whether liberal democracies can preserve confidence in institutions that must remain above politics. Once citizens believe courts, regulators and bureaucracies have become participants in political contests rather than impartial referees, trust begins to erode.

History shows that democracies rarely collapse overnight. They weaken gradually.

Institutions lose legitimacy. Political opponents become enemies. Every investigation is interpreted as warfare. Every inquiry becomes another campaign.

The solution is not weaker accountability. It is stronger impartiality.

A democracy is judged not by how aggressively it pursues unpopular leaders, but by whether citizens believe justice is blind, institutions are fair and political disputes are ultimately settled by the people.

Once that confidence disappears, restoring it is far harder than winning any election.