What’s at Stake in the 2024 Montana Supreme Court Elections

The Montana Supreme Court has made headlines in recent years with its decisions affecting reproductive rights, climate change, and election law, and will hear more high-profile cases in the coming years. Nonpartisan elections for two seats on the seven-member court this fall will shape the outcomes in those cases and the direction of law in Montana.

Two incumbent justices have declined to run for reelection, resulting in open races for the two seats. Former federal magistrate judge Jerry Lynch and attorney Cory Swanson are running to be chief justice, having qualified for this fall’s ballot in a May nonpartisan primary. State district court judges Katherine Bidegaray and Dan Wilson are running for an associate justice position after advancing past the primary.

Montana voters will consider ballot measures related to abortion and election law this year, including one proposing an unrestricted right to abortion before “fetal viability” and another requiring that the winners of U.S. Senate, Congressional, and state elections be determined by a majority, not just a plurality, of votes. Should they pass, the newly composed court will almost certainly be asked to interpret those measures and define the contours of the rights they grant in years to come.

But the court’s recent decisions on reproductive and voting rights — some of its highest profile rulings — will likely endure any changes in composition resulting from this year’s elections, at least for the time being. The court acted unanimously, for example, when striking down both a law prohibiting registered nurses from providing abortion care and a law requiring parental consent for abortions. It ruled 6–1 to allow the ballot measure protecting abortion rights to go before voters this fall. And when the court ruled earlier this year that the state constitution provides greater protections for the right to vote than the federal Constitution does, it did so with a 5–2 majority. Retiring Justice Dirk Sandefur was one of two justices to dissent from that ruling, while retiring Chief Justice Mike McGrath was in the majority, so that holding is safe even if both new justices disagree with it.

One of the most unsettled questions of law the new justices will likely wade into is how much responsibility the state has to combat climate change. After a first-of-its-kind trial, a Montana trial court ruled in Held v. Montana that some effects of climate change can be traced back to the state’s policies and that the state constitution’s guarantee that the state maintain “a clean and healthful environment” requires Montana to reduce its policies’ harmful environmental impacts. The high court has been asked to review the case but has not yet ruled on the merits. In a 5–2 ruling in January, the court denied a motion to stay the trial court decision. The court heard further arguments in the case in July. Given the complexity of the issues and the case’s procedural posture, it is likely to continue for years and come back to the court on one or more occasions.

Narrow majorities in recent decisions related to the rights of criminal defendants suggest that this year’s races could have a substantial impact on criminal law in Montana. For example, the retiring justices — Sandefur and McGrath — fell on opposite sides in four recent 4–3 decisions about whether law enforcement had carried out an unconstitutional search or seizure of a defendant. Three of the four cases came out in favor of defendants. Sandefur would have ruled for defendants in all four cases while McGrath sided with law enforcement.

The race for chief justice between Lynch and Swanson carries added significance because of the chief’s unique role. For example, in Montana the chief justice appoints a lower court judge to fill a seat on the state supreme court when a sitting justice recuses themself from a case. The chief also serves as the court’s lead defender in disputes with the other branches, a role that current chief McGrath embraced during a recent fight with the legislature that ended with a unanimous court issuing a sharp opinion quashing legislative subpoenas to investigate the judicial branch. The subpoenas were a response to the court administrator’s polling of state judges about their position on a proposed bill, a regular practice in Montana that lawmakers deemed improper.

The subpoena fight and some recent decisions — like the abortion holdings and the refusal to stay the order in Held — suggest a willingness to butt heads with and block policies adopted by a more conservative legislature and governor. But that can change. With another seat on the court up for election in 2026, any ideological shifts to the right this year could compound with that upcoming race to create a clear conservative majority on the court. 

With these stakes in mind, interest groups are spending heavily in the race, which could be Montana’s most expensive ever. In a press release announcing it would spend $1.3 million, the American Civil Liberties Union of Montana’s executive director said, “From abortion to marriage equality and Indigenous voting rights, the people we entrust with seats on the Supreme Court of Montana will play a critical role in determining whether we keep the rights Montanans value.”

Planned Parenthood similarly announced plans for a “seven-figure” ad campaign. At the same time, Fair Courts America, a group funded by Republican megadonor Richard Uihlein, has invested $200,000 in the race and the Republican State Leadership Committee’s Judicial Fairness Initiative, perennially the biggest spender in state judicial elections, has said that Montana is one of its top targets this year. (The Brennan Center is collecting television ads that run in the race as part of its ongoing work documenting spending in state supreme court elections). The $4.6 million interest groups and candidates spent on Montana’s most recent judicial elections in 2022 set a Montana record, but the state may yet surpass that this year.

Douglas Keith is a founding editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.

Morgan Munroe is a student at NYU Law School who is participating in the Brennan Center’s Public Policy Advocacy Clinic.

Suggested Citation: Douglas Keith & Morgan Munroe, What’s at Stake in the 2024 Montana Supreme Court Elections, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 24, 2024), https://statecourtreport.org/our-work/analysis-opinion/whats-stake-2024-montana-supreme-court-elections