Rice on destroying our institutions: “Over my dead body”

At last week’s celebration of the 50th Anniversary of Montana’s 1972 Constitution, there were many memorable moments, including the presentation of Jim Rice, Associate Justice of the Montana Supreme Court, during the panel discussion about “The Basic Rule of Law: The Backbone of a Constitution.”

Rice, who prior to his 2001 Supreme Court appointment had been a Republican legislator, spoke out boldly and clearly about the role of the judiciary in defending the institutions of our democracy. Rice said, “we live in a time of extremism. We’ve heard a lot about the extreme polarization in society, about our viewpoints and that has given legs to extremism in our words and language and extremism in actions.” He added it was “beyond the right of protest, even robust protest. It’s beyond the exercise of free speech and it’s beyond the right to petition for redress of grievances. These are extreme actions that undermine our institutions and tear at the fabric of the rule of law.”

Rice said that “for the first time in our nation’s history the transfer of power after a national election was not peaceful. The peaceful transition of power is a hallmark of the American system, or at least it was.” About rising political violence in words and deeds, Rice said he wished he “could say that that was just happening in faraway places. No, it’s reached the shores of Montana and we have seen it here.”

During the 2021 Legislative session the Judiciary held discussions about a proposed bill that changed the method of choosing judges when there were vacancies, after the existing law had worked successfully for nearly 50 years. The Legislature issued preemptory subpoenas for judicial documents. When the Supreme Court issued an order temporarily “staying” the legislature’s demands until a review of confidential and privileged information could be conducted by balancing the Montana Constitution’s “right-to-know and privacy” sections, what did the legislature do? According to Rice, “in response to the order the legislature and the Department of Justice notified the court that they REFUSED TO ABIDE BY THE COURT’S ORDERS and would proceed as they deemed fit.” That’s a clear violation of the rule of law.

This act of extreme defiance, fit with the national pattern. And the national pattern of extreme rhetoric followed as “a statewide public official said to the public: the Supreme Court justices on the Montana Supreme Court are corrupt.” Instead of working and finding a legal solution within Montana‘s Constitutional balancing of the branches of government, the legislature had torn away at the fabric of our governmental institutions.

Rice said he thought “how foolish I have been, and how shortsighted, to assume that our institutions would always endure. Didn’t you just think they would keep going on forever?” He pondered “the Gettysburg address - Abraham Lincoln asking whether this nation as conceived and dedicated will long endure” … and wondered “will our institutions be lost?” Rice’s response was firm: “over my dead body,” which received a standing ovation.

Rice, in his written opinion in the Legislature’s case, noted that over the 240 years from the Federalist Papers to the Montana Constitution “it is unquestionably and irrefutably the province of the judiciary on all matters that are brought to it to declare what the law is, even to the legality of the actions taken by the other two branches of government,” an American constitutional concept called “judicial review.”

Relative to constitutional judicial review, and noting that the judiciary has “no army to enforce its orders,” a question was asked “what are we going to do to make sure that the judiciary maintains its authority?”

Justice Rice’s response was “our power to enforce our duty comes from the support of the Montana people. That’s where we get it.”

After two standing ovations, Justice Rice left us to contemplate what we, as citizens, should do to insure our governmental institutions – our democracy – survive this time of extremism. The answer is in us. Operating within the rule of law, we need to support our democratic structures, processes and institutions, even when we might disagree with the specific decision. Support candidates committed to the rule of law. Are you ready for that battle?

Evan Barrett worked in Montana economic development, government, politics and education. He is retired and lives in Butte.