This article was first published in the April 21, 2021 Montana Daily Gazette. To get a free PDF copy of my 2012 study of the Montana Supreme Court, click here.
I’m glad to see that, due largely to efforts in the state legislature and by the Montana Daily Gazette, public attention finally is turning to the Montana Supreme Court.
The court’s problems are of very long-standing—extending back at least as far as 1972. In a recent research article, I examined the court’s 1972 decision upholding ratification of the present state constitution. I found that the court’s opinion was poorly drafted and the holding probably wrong and that the decision may have resulted from improper political influence.
In 2012, the Montana Policy Institute asked me to review the court’s later performance. I studied hundreds of cases issued over three decades. In the resulting publication, I concluded that—
Many of the court’s opinions lacked clarity;the court overruled its own precedents to an extraordinary degree;it sometimes violated due process rights;the justices sometimes used their power to protect themselves in conflict-of-interest situations;the court sometimes issued decisions in cases of great public importance without timely explanation; and in several key cases, the court had invaded the province of the legislature.