Marine Le Pen and the Weaponized Judiciary

François Mitterrand, who is now remembered as the greatest, or at least the savviest, left-wing statesman of contemporary France, and who reigned over the country for fourteen years, was initially considered a loser. He was twice defeated by a conservative in a presidential race, first by Charles de Gaulle in 1965, and then by Valéry Giscard d’Estaing in 1974. However, he eventually won against an incumbent Giscard d’Estaing in 1981, and was reelected in 1988.

Can something similar happen to Marine Le Pen, the leader of the right-wing National Rally party? She ran unsuccessfully for president three times in the past, even as her returns steadily improved each time. In 2012, she garnered 17.20 percent of the vote and came third, after François Hollande, a socialist, who was elected, and Nicolas Sarkozy, the incumbent conservative president. In 2017, she received 20.30 percent of the vote in the first round and 33.9 percent of the vote in the second, but was nonetheless defeated by Emmanuel Macron, a centrist. And in 2022, she lost again to Macron, despite having risen to 23.20 percent in the first round and 41.45 percent in the second.

When she failed for the third time, her right-wing rival Éric Zemmour (who only received 7 percent of the vote) rather disingenuously derided her as a perpetual loser. However, there is now a distinct possibility that a fourth attempt in 2027 would be successful. An opinion poll released on March 30 suggests that she could get 37 percent of the vote in the first round and thus almost double her 2022 returns. She could then potentially stand a real chance to attract a little more than 13 additional points in the second round and become the first female head of state in French history. No woman has been elected president so far in Republican France—not to mention the Old Regime, which famously barred women from the throne under the Salic Law.

Her current rise reflects in many ways a right-wing shift in French politics. Once shunned as a racist proposition, the National Rally’s central campaign plank, ending mass immigration from the Global South, is now increasingly being accepted by French public opinion. According to a 2023 poll, 64 percent of the French want non-European immigration to be curtailed. Another poll shows, even more tellingly, that 51 percent of the left-wing, pro-immigration and pro-Islamic LFI party’s voters agree that there are too many non-European immigrants.

But more factors are also working in Marine Le Pen’s favor this time. One of her major achievements, since she succeeded her father Jean-Marie Le Pen as party leader in 2011, was to “dedemonize” the party and win over hitherto reluctant voters: Once smacking of Vichy State nostalgia, the National Rally turned into a neo-Gaullist and democratic organization. 

Additionally, Macron will not be taking part in the 2027 election. A 2008 amendment limits French presidents to two consecutive five-year terms. Macron must therefore forego the election, though he may run again in 2032. This dynamic puts Le Pen at a distinct advantage against less prominent or less seasoned opponents, including Edouard Philippe, a former Macronist prime minister, who is polling at 21 percent.

But that’s only if Le Pen is allowed to run in 2027—and incredibly, she might not be.

On March 31—only twenty-four hours after the glorious poll predicting her electoral breakthrough was released—a court declared her guilty of having misused European Parliament funding in the interest of her party in the 2010s (albeit not for personal enrichment). The court sentenced her to five years of ineligibility and four years in prison, effective immediately.

Le Pen claims the inordinately harsh sentence is politically motivated. And she may well be right. In the court’s written justification, the presiding judge explicitly acknowledged that, “given the nature of the crime,” immediate enforcement was decided “with the aim of preventing the defendant from being elected in 2027.”

It is widely suspected that the true reason for sidelining Le Pen is to be found in Macron’s long-term political ambitions. Now forty-seven years old, the president has no intention of retiring from politics in two years. Ideally, he would like to see the 2008 amendment overturned. Failing that, he might reluctantly settle for having a loyal successor elected—someone who could promptly bring him back into power as prime minister, until the 2032 election. One naturally thinks of the 2008 arrangement between Russian President Vladimir Putin and his prime minister, Dmitry Medvedev.

But that remains far from guaranteed, given the current unpopularity of Macron and the Macronists—unless Marine Le Pen is removed from the equation. Which brings us to a further question: Could the French judiciary truly be this subservient to the president in office—or to part of his entourage?

Respect for the judiciary is rooted in the Judeo-Christian tradition. Nevertheless, certain lessons from history must not be overlooked. Judges have frequently insisted on their impartiality and dedication to the public good—only to act with clear partisanship and vested interests, whether by aligning themselves with the powers that be or by challenging them. 

The French may remember that the higher courts of justice adamantly opposed King Louis XV’s enlightened reforms in the late eighteenth century in order to protect their privileges, thus triggering the revolution that toppled the even more liberal King Louis XVI less than twenty years later. They may also recall that nearly all “republican” judges pledged in 1940 an anti-republican “oath of allegiance” to Marshall Philippe Pétain, the Vichy State dictator, when so requested. And that many of them had no qualms about enforcing Pétain’s anti-Semitic legislation.

Perhaps in an effort to redeem itself, after 1945, the French judiciary tended to align with left-wing ideologies, a shift that was accelerated at the end of the twentieth century by the so-called “judicial revolution” and rise of wokism. The turning point, in this respect, was the creation in 1972 of the Syndicat de la Magistrature, a far-left union that now dominates the profession.

In such a context, it is not unthinkable that some magistrates may come to see it as their duty to support one part of the political class at the expense of another. One cannot help but be struck, at any rate, by the number of such cases throughout Emmanuel Macron’s political career.

His main opponent in 2017, the conservative candidate François Fillon, a former prime minister, was undermined in the midst of the campaign by a sudden indictment for corruption—even though such procedures usually take much longer. Former conservative president Nicolas Sarkozy, a potential candidate for 2027, has just been handed a seven-year prison sentence on dubious grounds—a sentence more commonly given to major drug lords or terrorists. Meanwhile, political figures close to Macron or aligned with the left have avoided immediate prosecution (such as Jean-Luc Mélenchon, the leader of LFI) or have been acquitted (such as François Bayrou, the current prime minister).

The French are fond of saying that too much of a good thing can be harmful. The weaponization of the judiciary may have worked to the Macronists’ advantage until now, but there comes a point when it starts raising eyebrows—and backfires. That point may have been reached with Le Pen’s conviction.

What is particularly at stake here is the immediate enforcement of Le Pen’s ineligibility sentence, even before any appeal court has ruled on the case. This provision, which departs significantly from standard legal practice, was introduced by a 2017 law. It is theoretically meant to prevent repeat offenses or threats to public order, and has been applied in only about 3 percent of relevant cases. Moreover, the Constitutional Council—which serves as France’s supreme court on such matters—advised the judiciary to use it sparingly in a ruling issued on March 28.

Under such conditions, it seems difficult to justify barring Marine Le Pen from running in 2027 from the outset. A democracy cannot function without a judiciary that at least maintains the appearance of fairness and independence—nor without a minimum of respect for a candidate who enjoys the trust of over ten million citizens.

The judiciary seems to have understood this, as it has announced that Marine Le Pen will be retried on appeal in 2026, before the next presidential election, leaving open the possibility that she could still be eligible. Should the ineligibility be upheld, the National Rally would likely turn to the very young and charismatic Jordan Bardella, who has officially led the party since 2022: a man beyond all republican reproach—and one who could even capitalize on the public indignation caused by the judicial execution of the previous candidate.

Image by Pietro Piupparco, licensed via Creative Commons. Image Cropped.