Montana Supreme Court’s War Against the Rule of Law Finally Getting The Attention It Deserves

Montana Supreme Court’s War Against the Rule of Law Finally Getting The Attention It Deserves

Respect for the rule of law is fundamental to a free society. It also is necessary for economic well being.

Montana is among the nation’s poorest states. I was a law professor there for over 23 years and I also serve as Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. In a 2012 study I explained a crucial reason for Montana poverty: The state’s highest court has one of the nation’s worst records in following the rule of law.

The court’s defects are an open secret among Montana lawyers, but the problem has remained uncorrected for many years. Now a heated election campaign suggests “the times they are achangin’.”

For several decades, the Montana court has been notorious for overruling its own opinions, issuing incoherent decisions, and exhibiting political bias. My 2012 study documented all of this in detail: The Montana Supreme Court vs. The Rule of Law.

If the Montana Supreme Court is not following the rule of law, can’t the U.S. Supreme Court (SCOTUS) step in? Usually not. Most of the Montana tribunal’s opinions deal with issues of state law, and on that topic the state supreme court is usually final. Even when a federal issue is involved, the wronged party may not apply for SCOTUS review. For example, he may not have the funds to pursue the case (Remember: It’s a poor state). Or his lawyer may be reluctant to challenge the same judges who control his license.

Sometimes, however, justice is done. Shortly after my study, the U.S. Supreme Court promptly reversed two of the Montana court’s more outrageous rulings.

Montana judges are elected, but for several reasons the state’s judicial election system has been stacked heavily against reform. This year, however, all that could change: The state’s former solicitor general, Harvard Law grad Lawrence Van Dyke, is running for the court, and he’s not pulling any punches. Not surprisingly, members of the good ole boy network that has dominated the bench are desperately unhappy about that. In fact, some of their charges have been, well, rather unjudicial.

It is, moreover, hilarious to hear former justices who were elected with special interest money complain about special interest money. Or to cite screeds from “non partisan” organizations without revealing that those organizations have explicitly leftist agendas.

The good ole boy network’s real gripe seems to be that SCOTUS has struck down the state laws that protected their campaign finance monopoly. This has opened the system to groups formerly locked out, and has increased the possibility that Montana voters might learn the truth. I understand how this would terrify some people.

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