The Lesson From Montana, Stop Judicial Usurpation Before It Becomes Too Late

By Rob Natelson

From time to time I’ve told the story of how the left-leaning activists on the Montana Supreme Court exercise oligarchical control over the people of the state state—see, for example, here, here, and here. (“Oligarchy” means “rule by the few, as opposed to “democracy,” rule by the people.)

By misconstruing parts of the state constitution, the Montana justices have snatched state public policy from the democratic branches of government. Among the areas of policy where the justices’ political preferences are decisive are election law, environmental law, business regulation, and health law.

In those areas, the court severely restricts the options open to the people’s elected representatives. For example, when the legislature decided to move back the voter registration deadline from Election Day to the day before, the court declared the change unconstitutional. (Of course, the deadline for registration traditionally has been a full month before Election Day.) The court didn’t give the legislature even 24 hours leeway!

When the state’s attorney general strongly criticized the court, its attorney-discipline machinery began proceedings to suspend his law license.

The court hasn’t left much discretion in the people, either. In most states, the people can reverse their judges by adopting constitutional amendments. But the Montana justices have invented pretexts for striking down amendments they don’t like—even ballot issues the people approve by supermajorities. Over the past 40 years, the court has upheld every liberal ballot issue that has come before it, but voided almost every conservative one.

This month, the justices continued their aggressive behavior with rulings in two cases. Both involve children. In the first, the court ruled presumptively unconstitutional a state law protecting children against gender-based mutilation. In the second, the court gave judicial standing to children who want the state [to] follow to their preferences in environmental decision making. Both cases turn traditional law on its head.

How Did It Get Out of Hand?

The court laid the foundation for oligarchical control in 1999. That year, the justices issued three decisions distorting the Montana constitution in ways that arrogated great power to themselves. At the time, I was Professor of Law at the University of Montana—and a public figure. After the first of the three decisions, I publicly warned that if Montanans did not act promptly to stop the court’s overreach, they could lose their right to self-government.

To read the rest, visit The Independence Institute.