Montana’s Activist Supreme Court
"The Court should display fairness and stability and respect the constitutional prerogatives of the other branches of state government."
“Judicial activism” is not a complimentary term. It refers to occasions when judges rule beyond their mandate, undermine the constitutional separation of powers, or make up new law from the bench. The Montana Supreme Court, evidence shows, is one of the most activist state courts in the country, and that should concern every citizen of the state.
Whenever any branch of government exceeds its authority or fails to uphold constitutionally guaranteed rights, we should not want judges to keep quiet and do nothing. We should want them to do their constitutionally mandated duty. They should do that without usurping the legitimate lawmaking function of elected legislatures, or favoring certain political parties and causes while handicapping others they don’t like. Judges diminish respect for the rule of law when they rule as activists with ideological agendas. We must expect a judge to apply the law, not impose his policy preferences or play favorites.
The Montana Supreme Court is activist in a way that should alarm a vigilant citizenry. This isn’t conjecture or opinion; it is an unfortunate fact well documented recently in a study from the Frontier Institute in Helena.
Rob Natelson, the study’s author, is a former University of Montana professor of constitutional law with 39 U.S. Supreme Court citations to his credit. In The Montana Supreme Court: An Institution in Need of Reform, Natelson analyzed decisions going back several decades. He notes that the Treasure State’s high court frequently “wanders outside professional boundaries,” issues rulings rooted in personal, ideological bias instead of the Constitution or existing law, and acts as if it were an elected legislature. His report is loaded with examples.
In one decision after another, the Montana Supreme Court has “privileged” so-called environmental rights over property rights and prioritized government regulation over economic rights. The state’s constitution affords the same level of protection to property, economic and environmental rights so when the Court plays favorites, it violates the Constitution.
The Montana Supreme Court routinely favors left-wing or liberal causes (including ballot issues) over conservative causes. Natelson argues that the 2012 case of Reichert v. State ex rel. McCulloch is a dramatic case in point:
In that case, the justices permitted a group of liberal citizens with no apparent standing to sue to maintain a challenge to a proposed referendum passed by the legislature. Yet the court prohibited the conservative lawmakers who had supported the measure from intervening as parties—even though their interest was distinctly more significant than that of the plaintiffs…It is telling, perhaps, that several Montana lawyers have assured the author that they can predict case results just by knowing the political profiles of the parties.
Ballot proposals that seek tax relief or that would strengthen the rights of crime victims are voided by the Court. Measures that would expand government (such as “free” kindergarten) are given the green light. Since 1982, the Court sustained every liberal ballot measure challenged for legal insufficiency and voided nearly every conservative ballot measure.
Natelson writes that the Court “often defeats efforts to curb the power of the state bureaucracy,” as it did in its 2021 Board of Regents v. Montana ruling. “For the past four decades,” says Natelson, “the court has protected the state bureaucracy from popular control and remains determined to do so.”
The Court should display fairness and stability and respect the constitutional prerogatives of the other branches of state government. Its members are judges, not legislators. They are jurists, not governors.
The sad fact is that the Montana Supreme Court is an unrestrained and unusually activist body. That is a good reason for both the media and the state’s citizens to give the Natelson study the close attention it deserves. It is also the reason Natelson himself asks these pointed questions: “Is Montana to be governed by her elected representatives or by a judicial oligarchy? By the rule of law or by arbitrary rulings?”
Take a look at the Natelson study for yourself. Do so before November’s elections, when the citizens of Montana will have some say in their Supreme Court’s future direction.
Lawrence W. Reed writes a monthly column for the Frontier Institute in Helena, on whose board he serves. He is president emeritus of the Foundation for Economic Education and blogs at www.lawrencewreed.com.