After many years of these abuses, Montanans are finally conducting extensive discussions on judicial reform.
This essay was first published on May 7, 2026 in Law & Liberty.
At national academic conferences, law professors sometimes play a variant of a game of “one-downsmanship.” It’s a contest to determine whose state supreme court is the worst. It is sad to report that when I was on the faculty at the University of Montana law school, I always won those contests.
While all state high courts have their flaws, the Montana panel has long suffered from uniquely serious deficiencies. My conclusion is based on more than academic chatter. It derives from long observation and from experience spanning the decades before I began specializing in constitutional law: experience that included practicing, teaching, and writing in areas of jurisprudence governed mostly by case decisions issued by the nation’s state-level appeals courts.
The Montana Supreme Court’s deficiencies encompass poor legal craftsmanship and systematic bias for and against certain classes of parties and causes. They include egregious constitutional misinterpretations, disrespect for judicial boundaries and for the provinces of the legislative and executive branches. Yet the court has managed to seize an absolute veto over the state constitutional amendment process and over legislative policies with which it disagrees.
Legal Craftsmanship
Montana Supreme Court opinions are often poorly crafted. This is not a new problem. A venerable example is the court’s chaotic 1972 opinion sustaining the ratification of the current Montana constitution, an opinion I examined at length in a law review article several years ago.
A far more recent example is the court’s opinion in the 2022 case of Board of Regents of Higher Education v. Montana. In that case, the court reached the surprising conclusion that, in its governance of the state university system, the Montana board of regents could disregard general state legislative policy. When discussing interpretation of the state constitution, the court asserted both that
- “We must discern the Framers’ intent from the plain meaning of the language used and may resort to extrinsic aids only if the express language is vague or ambiguous,” and
- “Even in the context of clear and unambiguous language … we determine constitutional intent not only from the plain language, but also by considering the circumstances under which the Constitution was drafted, the nature of the subject matter the Framers faced, and the objective they sought to achieve.”
Each statement, of course, contradicts the other.
Such contradictions are not rare. The court claims to follow federal rules of party “standing.” Yet it frequently fails to do so. It claims that government actions impairing rights enumerated in the Montana Constitution’s Bill of Rights are subject to strict scrutiny. Yet it grants government “great deference” when it infringes on the constitution’s enumerated right to property.
A further illustration of the court’s inconsistency is its history of overruling its own precedents at a frenetic rate. This continued for many years, as the justices discarded their earlier rulings to reach outcome-driven results. The rate of overruling finally began to diminish during the last decade or so, apparently as a result of some rare scholarly criticism.
Bias
Since the early 1980s, the Montana Supreme Court has displayed a general pattern—only rarely broken—of favoring some kinds of parties over others. Indeed, some Montana lawyers have assured me they can predict case results just by knowing the political profiles of the parties.
Favored parties are those in the traditional liberal political pantheon: labor unions, public schools, environmental groups, government interests, liberal Democrats, and undocumented immigrants. Disfavored parties include property owners, taxpayers, businesses, traditional religions, and conservative Republicans. By way of illustration, in the 2012 case of Reichert v. State ex rel. McCulloch, the justices permitted a group of liberal citizens with no apparent standing to maintain a challenge to a referendum proposed by the legislature. But in the same case, they prohibited the referendum’s conservative sponsors from intervening to defend the measure.
In studies conducted in 2012 and 2024, I was able to quantify the court’s bias by surveying cases testing the validity of conservative and liberal ballot issues. Normally, one would expect no particular connection between the political thrust of a ballot issue and whether its sponsors had complied with the law. The surveys revealed, however, that the Montana Supreme Court had an almost unbroken record of upholding liberal ballot issues and voiding conservative ones.
One of the justices doesn’t even try to hide her bias. She has displayed leftist iconography on flags flown at her home for years—in direct violation of the court’s own ethical rules.
Judicial Lawmaking
In two places, the Montana Constitution guarantees a “right to a clean and healthful environment.” When the constitution was adopted in 1972 and for years afterward, these provisions were understood as directions to the legislature rather than justiciable terms. In other words, they were seen as akin to the US Constitution’s Guarantee Clause. In 1999, however, the Montana Supreme Court used them to vault itself into the position as final arbiter of state environmental policy, a position from which it aggressively exercises a veto over legislative and executive decisions.
The state constitution also guarantees a right to privacy, adopted primarily as a safeguard against undue government surveillance. When the constitution was ratified, the universal understanding was that the document left issues of abortion to the legislature. Yet in another 1999 case, the court turned the privacy right into a permanent judicial veto over abortion policy, and in subsequent rulings it has extended that veto into other areas of social policy.
Over the past few decades, the court has overturned countless state laws on many subjects—thereby substituting its own policies for those of the legislative and executive branches. Thus, it struck down a measure moving the deadline for voter registration from Election Day back to the previous day. It has twice invalidated legislative measures providing for electing justices by district rather than at large. Most recently (on April 14), it declared that the state constitution’s ban on discrimination based on “sex” presumptively required the state to amend previously-issued birth certificates to conform with a person’s subsequently-stated “gender identity.”
Particularly vulnerable have been laws passed by Republican legislatures. In 2020, Montana voters elected a Republican “trifecta”—that is, a GOP governor, house, and senate—for the first time in many years. When the new majorities attempted to enact their platform promises, the supreme court intervened repeatedly, striking down at last 12 key bills passed during the legislature’s 2021 session. Lower courts and liberal litigants got the message: They piled on with a lawfare campaign, attacking the constitutionality of Republican bills in well over 70 state lawsuits. Although the voters reaffirmed the GOP trifecta in the 2022 and 2024 elections, much of the agenda the voters endorsed remains on hold.
How the Court Protects Itself from Reversal
In theory, the people of Montana may reverse the court’s constitutional decisions by initiating and ratifying constitutional amendments. But, again, in 1999, the justices began to protect themselves from that by converting an administrative regulation into an absolute veto over the amendment process.
The court’s specific formula and rationale have differed over time. As initially stated, the rule was that an amendment may not expressly alter more than one section of the Constitution. As later stated, the rule was that an amendment may not expressly or impliedly alter more than one part of the Constitution, unless all changes are “closely related.” Moreover, the court announced that it would consider an amendment’s wording as one change and its effect as a second change—thereby rendering any proposed amendment, no matter how insignificant, potentially voidable as embodying more than one change.
As time has progressed, the court has demonstrated a pattern of applying its “closely related” formula with various degrees of strictness or leniency, depending on whether or not it favors the amendment whose validity is being litigated.
Reasons for the Court’s Conduct
One reason for the court’s conduct is opportunity: It holds a powerful position in state government. There is no intermediate appellate tribunal, so the Supreme Court hears all appeals. It has significant original jurisdiction as well.
The court keeps a tight rein on Montana lawyers. It created a state bar association, and it requires all the state’s lawyers to join it. The court also controls the attorney discipline system at the prosecution, trial, and appeals levels.
The justices have shown a willingness to use the discipline system to attack lawyers who challenge them. An incident of this kind became public in 2023 when the court’s disciplinary agency entertained a series of professional conduct charges against the elected state attorney general after he and other lawyers in his office had criticized the court. The charges eventually were dismissed by a Supreme Court panel dominated by district judges sitting in for justices with conflicts of interest in the case.
In other states, media or scholarly criticism can trigger an evaluation of judicial conduct. But this is rare in Montana: The local mass media have shown little skepticism of the court’s behavior. The state has only one law school, and its relationship with the court is a cozy one. And most Montana law professors have state law licenses and are therefore subject to the court’s disciplinary procedures.
Moreover, the method of electing justices seems calculated to obstruct voters from learning much about the candidates. Although the state is very large and its population is scattered, elections are statewide rather than by district, as in some other sparsely populated states. Elections are (purportedly) non-partisan, so there are no ballot clues to a candidate’s judicial philosophy. Until very recently, party participation in judicial elections was illegal, and there was no truly independent body that assessed candidates or judicial performance.
As a result, the information flow during Supreme Court election campaigns is dominated by a few special interests with disproportionate stakes in the process—particularly trial lawyers.
How Montana Could Reform
After many years of these abuses, Montanans are finally conducting extensive discussions on judicial reform. As noted earlier, the legislature twice passed measures for electing justices by district, but the court voided both on specious grounds. In 2024, the state senate formed a special committee to consider judicial reform, and the legislature has altered the nomination procedure for judicial vacancies and created a judicial evaluation commission. It is also considering allowing candidates to declare party preferences.
In the 2024 elections, a moderate conservative surmounted previously insurmountable obstacles to win election as chief justice, and he occasionally has been able to form useful alliances among his more competent and restrained colleagues.
Other reform suggestions include raising the justices’ low pay levels to encourage more talented judicial candidates, narrowing the court’s expansive original jurisdiction, rewriting the criteria for impeachment, creating a specialized bench to hear certain kinds of cases, and moving the tribunal away from the political temptations in the capital city of Helena. Another suggestion—replacing judicial elections with appointment—is unlikely to be implemented because of the uncertainty of its effects and Montana’s populist culture.
The Montana experience serves as a cautionary tale to other states on the risks of judicial oligarchy.
