Montana’s nominally nonpartisan state Supreme Court has come under intense partisan scrutiny in recent years, as Republicans argue the court’s repeated rulings blocking GOP-backed laws on constitutional grounds are evidence of liberal bias.
The rulings that have infuriated some members of the GOP include nullifying a law that would have ended Election Day voter registration and upholding the Armstrong precedent that interprets the state Constitution’s right of privacy as protective of abortion access. Legislative Republicans have also criticized aspects of the court’s administrative practices and set up select committees to probe the court’s internal conduct.
Democrats in turn have argued that with the Montana Legislature and governor’s office under Republican control, the court is the state’s only check against conservative excess. Republican criticism of the court, they contend, is not designed to encourage transparency but rather to open the door to partisan control.
Two of seven seats on the high court, including the chief justice, are open in this year’s election, as incumbents Mike McGrath and Dirk Sandefur chose not to run for additional eight-year terms.
As part of our 2024 Election Guide project, Montana Free Press asked the six candidates vying for the court’s two open seats how they’d articulate the stakes involved in this year’s judicial election. Their answers, provided via a written questionnaire, were lightly edited for grammar but were not subjected to fact-checking and are otherwise presented verbatim.
WHAT WE ASKED
What do you regard as the stakes for who is elected to the Montana Supreme Court this election, both for everyday Montanans and for the Montana Constitution?
CHIEF JUSTICE CANDIDATES
Jerry Lynch
Former federal magistrate judge
The stakes could not be higher in this election. Montanans of all political stripes face assaults on their constitutional rights and attempts by partisan extremists and out-of-state corporate interests to wrest control of government from the hands of the people. The Montana Constitution is a living document that derives its power from the consent of the governed. If we ignore it, or demean it, or allow it to be chipped away by whatever political party is currently in the majority, we will have only ourselves to blame when our government ceases to function. Instead, we must elect leaders of the judicial branch whose goal is not partisan political gain but the preservation of our constitutional rights, and a government of the people, by the people, for the people.
Cory Swanson
Broadwater County attorney
To modify a phrase from Chief Justice John Roberts, the quickest way to remove politics from case decisions is to stop deciding cases on the basis of politics.
The Supreme Court should focus on good old-fashioned appellate judging, no matter the case before it. But some cases are inherently political, so what to do? Just focus on good old-fashioned appellate judging. Follow the rules of interpretation like you would for any case. Let the law lead to the outcome, don’t decide the outcome and then modify the law or overturn precedent to get there. That is fundamental to the problem and the solution.
If the judiciary simply does its job in this manner, then political cases will be just like every other case: The loser will be upset, but the reasoning will be clear and unassailable. The Supreme Court should uphold the rule of law by removing political concerns from its legal interpretations. Let the law be clear, and let the political chips fall where they may.
The third chief justice candidate, Doug Marshall, didn’t respond to emails and a call inviting his participation in the questionnaire before MTFP’s election guide was published.
SUPREME COURT JUSTICE CANDIDATES
Katherine Bidegaray
State district court judge
The stakes are high because our 1972 Montana Constitution and many of the unique rights it protects — privacy, education and the preservation of Montana’s pristine landscapes — are facing significant threats. The Montana Supreme Court’s decisions profoundly impact everyday Montanans every day, making it crucial to have justices with the integrity, fortitude, and commitment to uphold our Constitution, to protect and defend our Montana values and rights, and to keep the judiciary fair and impartial. With 38 years of combined legal and judicial experience, I am fully prepared to meet that commitment.
Dan Wilson
State district court judge
Whether Montanans are content or disappointed with various decisions by our Supreme Court in recent years, the stakes for Montanans and our Constitution are the same, regardless of the year or the election. The question is whether we will have a court seen as respectful of the Constitution and the rule of law — including the law of precedent — or whether we will have one seen as stepping outside of its own boundaries. For all Montanans, the answer to that question is at stake in this election.
Jerry O’Neil
Former state senator
All three: My campaigning, my being elected, and my serving as Supreme Court justice will help break the monopoly that limits the public’s access to our justice system.
O’Neil, a paralegal and former Republican state legislator from Columbia Falls who has never passed the Montana bar examination but has been permitted to practice before the Blackfeet tribal court, has been engaged in a long-running legal dispute over his ability to practice law in Montana’s state court system.
You can see the full MTFP 2024 election guide here.
