Bench Memos

Other Studies of the Montana Supreme Court

As Carrie Severino mentioned on Tuesday, the Judicial Crisis Network recently released a white paper about the Montana Supreme Court’s defiance of Supreme Court precedent on particular issues of federal law, such as free speech, property rights, and arbitration. It’s an excellent paper and I recommend it.

If you’re interested in knowing more about the Montana Supreme Court, here are a few other articles.

You should definitely read a 2012 study by Robert G. Natelson, a Senior Fellow at the Montana Policy Institute. Natelson’s paper, entitled The Montana Supreme Court vs. The Rule of Law. Natelson’s study, which is cited in the JCN paper, is a broader critique of the Montana Supreme Court’s jurisprudence and activism, with a focus on the problems that the court’s practices create for the rule of law. Such problems are especially problematic, according to Natelson, because the Montana Supreme Court is unbelievably powerful within Montana’s legal community (footnotes omitted):

One reason is that there are no intermediate courts of appeal in Montana. The high court decides many cases that in other jurisdictions would be resolved at the intermediate level. In addition, the Montana Supreme Court has very broad authority over the state’s attorneys. Its agencies license and discipline all lawyers. In 1974 it created the State Bar of Montana, and it requires all lawyers to be members.

Montana legal writers rarely challenge the court in any fundamental way. Writers on law are nearly all attorneys and/or law professors, and Montana attorneys are subject to court discipline. Montana law professors all work for a single institution, The University of Montana School of Law. That school’s relationship with the court is a cozy one: The court benefits the law school by requiring applicants for a Montana law license to have graduated from a law school accredited by the American Bar Association, which fortifies UM’s monopoly position. Nearly all UM law faculty members are members of the State Bar, and therefore subject to the discipline imposed by the Montana Supreme Court; most faculty attend at least some State Bar meetings. The school “courts” the justices by regularly inviting present and former justices to speak and teach. The school hosts Montana Supreme Court arguments at least annually, and it honors the justices at an annual dinner.

The three principal magazines of legal commentary within the state all are associated indirectly with the court. The Montana Lawyer is published by the State Bar. The Montana Law Review and the Public Land Law Review are both published by the UM law school, and the Montana Law Review traditionally receives funds from the State Bar. Thus, the Montana Supreme Court is rarely subject to the kind of fundamental criticism endured by other governmental institutions.

Adding to the strength of the court is the fact that Montana’s legislators, who serve only part time and lack a strong policy support staff, usually are in a weak position from which to challenge the justices. As is discussed below, the court regularly has invalidated legal efforts to curb agencies of state government, including itself.

For all these reasons, the court’s jurisprudence has an out-sized effect on Montana public affairs.

Natelson’s paper is well worth reading in its entirety.

If you are more accustomed to the staid prose of law review articles, two other articles stand out. First, there’s Professor Scott J. Burnham’s article about the arbitration conflict entitled The War Against Arbitration In Montana.

Second, there’s the analysis by Professor Jeffrey T. Renz of the University of Montana School of Law about stare decisis and Montana Supreme Court decisions 1991-2000. He concludes:

Between 1991 and 2000, the Montana Supreme Court overruled cases at an unprecedented rate. No other state court took a similar approach. In no other decade was the Montana Supreme Court as active.

Many may disagree with my categorization of these cases. It is perfectly arguable that some decisions I find justifiable are not, and that some decisions I criticize are justifiable. Any number of decisions could fall into more than one category.

Nevertheless, the pattern illustrates something. Moving a case here or changing the category of one or two there does not alter the picture. The court was active and was often irrationally active. If we set aside a tendency to act in a civil law tradition, the court’s activity can be explained only by a lack of adherence to principle when overruling its precedent. By remembering and applying the values of stare decisis, the court may return predictability to Montana’s jurisprudence.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...