You don’t shoot at judges by Holger Elias, 5/15/2025

The border is a place of decision. Legally speaking, it marks the transition of jurisdictions, but politically it has long since degenerated into a projection screen—for fears, for displays of power, for the assertion of an order that is self-sufficient in its representation. In June 2025, this border was redrawn: not in concrete or barbed wire, but in legal reality. The Berlin Administrative Court declared several rejections of asylum seekers at German borders to be contrary to EU law. A ruling of remarkable clarity – and explosive effect.

It was as if a drop had broken the rhetorical dam. Even before the legal intricacies of the ruling had sunk in, the drums of indignation had begun to beat. There was talk of an “isolated case,” a “politically motivated decision,” and an alleged “construction of jurisdiction” with which a Green-leaning chamber of judges presumed to thwart executive policy. Federal Interior Minister Alexander Dobrindt (CSU) hastened to declare the decision non-binding – and announced in the same breath that the previous rejection practice would be maintained. The executive branch as master of the interpretation of the law? A dangerous precedent.

What is being staged here is more than a political response to an unpopular decision. It is an attempt to delegitimize the third branch of government, undermine its independence, and turn the boundary between law and power into a one-way street. In doing so, political rhetoric makes use of the mechanisms that Michel Foucault once analyzed as the productive force of discourse: language becomes a weapon, a disciplining form of asserting reality. “Provisional,” “not competent,” “case-specific”—these are no longer legal terms, but semantic barrages used to deliberately undermine confidence in the judiciary.

The decision of the Berlin Administrative Court is remarkably unambiguous in its legal substance. It declares the practice of rejecting asylum seekers seeking protection on German soil to be incompatible with EU law. The fact that these are urgent decisions does not diminish their significance, as any administrative lawyer would confirm. The chamber ruled with the necessary consistency—not out of ideological arbitrariness, but because the law requires it. The fact that this is happening at a time when political actors are styling themselves as border guards is no coincidence, but rather an expression of a development that had long been in the making.

For the narrative being peddled here – of the “asylum lobby,” of “judicial activism,” of a supposedly infiltrated judiciary – follows a familiar pattern: the externalization of responsibility. Politicians are failing to manage the global causes of flight, failing to distribute refugees within Europe in a spirit of solidarity, and becoming entangled in the contradictions between the rule of law and the dogma of deterrence. Instead of openly negotiating this contradiction, judges are being targeted. Like the “people’s judges” of the McCarthy era in the US, those who want to enforce the law are now being branded as “enemies of the people.”

It is a dangerous situation. It is hardly surprising that a platform such as Nius—edited by Julian Reichelt, the former editorial writer for Eskalation—is spinning conspiracy theories about alleged secret plans of the “asylum lobby” with ideological fervor. What is new, however, is that such narratives are increasingly finding resonance among parts of the government, who are no longer even embarrassed to publicly denounce legal decisions as “politically motivated.” The fact that the attacks ultimately turn into tangible threats against judges marks the final stage of escalation in a shift in discourse that can no longer be ignored.

From a legal perspective, the case is clear. The rejections concerned asylum seekers who had demonstrably submitted their applications on German soil—at train stations, on trains, i.e., within Germany. According to European law, this means that Germany is responsible for the asylum procedure. The much-cited “non-entry fiction” does not apply here—unless one wants to reduce the law to a fiction. The attempt to shift responsibilities using semantic constructs such as “a train station is not the same as federal territory” is nothing more than an administrative sleight of hand – an institutionalized form of irresponsibility.

What follows from this? First of all, the realization that the rule of law is more than a system of norms – it is a culture of validity. If this culture is broken, whether through political arrogance or media agitation, it is not only a judgment that is at stake, but trust in the system itself. When ministers publicly declare that judgments will simply be ignored, the law becomes an offer, not a foundation. And when judges come under pressure because they apply the law, the separation of powers becomes a sham.

The strategy of delegitimization is well calculated: those who portray the judgment as an isolated case deprive it of its political explosive power. Those who question the jurisdiction of the court challenge its authority. Those who accuse judges of political motives cast them as biased. It is a lesson in rhetorical undermining that exemplifies a new understanding of power: it is not the law that legitimizes politics, but politics that dictates what should be right.

What is happening here is a challenge to the constitutional principle of judicial independence. And it is not happening in a vacuum. Even during the pandemic, the state of emergency was elevated to the new normal, and fundamental rights were treated as disposable. What is now happening in the context of migration follows this logic: the security narrative becomes a universal justification for executive encroachments. Anyone who opposes this is considered naive, “asylum romantic,” a disruptive factor in the field of security architecture.

The philosopher Giorgio Agamben once spoke of “homo sacer” – the human being who becomes lawless because he is subject to the exception. One could add: in the political debate of the present, the judge becomes “homo suspectus” – the suspect who loses his independence as soon as his judgment contradicts the political will. The constitutional state thus becomes a battleground for interpretations – and the law itself becomes a pawn in power-strategic interests.

What remains is the question of whether the judiciary can withstand this development. There are still judges who resist the pressure, who assert the law against the interests of power. But their position is becoming more precarious. Not only in Germany. In Hungary, Poland, and even in France and Italy, we have been observing a trend toward executive dominance for years. The separation of powers is becoming a facade there—a development that Germany has so far been unwilling to share. But the case of Berlin shows that the cracks are there.

Those who protect the law are not just protecting paragraphs. They are protecting the idea that power must be limited. That no government may place itself above the law. And that judges are not mere recipients of orders, but defenders of the order that protects us all – even from ourselves.

The tragedy of our present is not that the law is too weak. It is that it is too often sacrificed – on the altar of political expediency. “You don’t shoot judges,” Carl von Ossietzky once wrote. Today, one would have to add: You don’t delegitimize them – unless you want to shake the very foundations of the state in which we live.