The Montana Legislature’s Partisan Attack on Judicial Independence

The Montana Legislature began its biennial session in January with its sights on Montana’s nonpartisan elected judiciary, as many legislators claim the courts have overstepped their authority by invalidating unconstitutional laws. 

A newly created interim committee, the Senate Select Committee on Judicial Oversight and Reform, is responsible for at least 27 bills intended to interfere with the judiciary’s operation.

Legislative leadership described the bills as “court reform,” and other legislators claimed that voters are clamoring for change, describing the situation as “partisan judges and partisan courts veto[ing] bills.” Yet one of the proposed fixes is to require judges (elected in nonpartisan races since 1935) to run in partisan elections.

Proponents of the partisan judiciary bill say it will provide voters more information about judicial candidates, a common argument in favor of partisan elections. Outside spending in state judicial races is uncontainable under federal law, and recent Montana Supreme Court elections have seen extraordinary amounts of spending, jumping from less than $500,000 total per election through the early 2010s to millions in the 2024 elections. With so much money pouring into these races — money being spent by outside interest groups particularly interested in one or more hot-button political issues — bill proponents argue that partisan elections will make relationships between candidates and funders more transparent.

Certainly, spending in state judicial elections is higher than it has ever been. But making Montana’s judiciary partisan is unlikely to cure the problem of overspending. Indeed, past experience from other states suggests that partisan elections may draw more spending than nonpartisan races.

The purported transparency benefits of partisan affiliations are also doubtful. Partisanship information may be helpful for voters on certain significant issues —the constitutionality of an abortion ban, for example. But it will not tell voters much that is relevant to the day-to-day work of judging, and it may even interfere with some relevant information. For example, partisan elections are less likely to weed out poor candidates (probably because partisanship is a too-potent signal).

Partisan judicial elections also interfere with judicial independence, supplanting institutional interests with partisan considerations. Multimember decision-making bodies, including the Montana Supreme Court, do their work by finding agreement across diverse perspectives. On that measure, the Montana Supreme Court is doing extremely well, deciding nearly 90 percent of its docket (which, unlike most courts of last resort, it does not choose) unanimously — a sharp contrast to the U.S. Supreme Court, which rarely gets close to 50 percent. In 2022, the Montana Supreme Court wrote 251 opinions; Justice James A. Rice, a former Republican state legislator generally seen as the most conservative member of the court, wrote no concurrences and only four dissents in full or in part. Although state court statistical data is limited, there is at least some indication that partisan election methods make for more intense ideological splits.

Data, while limited, suggests that Montana voters agree that partisan judicial elections are no solution. A recent poll shows that over 70 percent of Montana voters “disagree” or “strongly disagree” with making Montana’s judicial elections partisan, including over 60 percent of Republican voters. Another 10 percent or more of respondents within each group were indifferent or unsure.

This is not to say that judicial reform is not a worthy goal or that legislatures have no role to play in checking judicial power. But when state legislators are displeased with judicial outcomes — rather than concerned with the fairness and reliability of the system as a whole — they have a solution other than remaking the judiciary in their own (partisan) image. The Montana Constitution, like many other state constitutions, provides an answer: The referendum and initiative powers. The legislature is able to refer constitutional issues to the voters, such as the state’s ban on gender-affirming medical care for minors and the scope of state environmental review. Robust use of the legislative referendum power can curb overreach without causing the negative downstream effects of partisan judicial elections.

Indeed, a proposal to reshape Montana’s judiciary would itself be an ideal candidate for a constitutional referendum. Nothing would better serve the transparency and voter competency interests underpinning the call to reshape Montana’s judiciary.

Constance Van Kley is an Assistant Professor at the Blewett School of Law at the University of Montana, where she teaches federal and state constitutional law.

Suggested Citation: Constance Van Kley, The Montana Legislature’s Partisan Attack on Judicial Independence, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 10, 2025), https://statecourtreport.org/our-work/analysis-opinion/montana-legislatures-partisan-attack-judicial-independence