Judicial activism or judicial restraint?

Some may consider it mere coincidence that over the past 40 years the Montana Supreme Court has struck down almost every conservative ballot measure (referenda and initiatives) that has come before it, while upholding every liberal one – including seven examples of such conduct in the past 10 years alone.  

Likewise, maybe it’s only coincidence that during this same period, our high court has openly disrespected the lawmaking prerogatives of the state Legislature, blowing up one conservative statute after another, while standing firmly in the quicksand of judicial activism.  

But these brazen outcomes are predictable, not coincidental, as two massive studies by Rob Natelson on the high court’s legacy of decision-making chaos have documented. 

The court have in fact set on its head, our entire concept of fair, objective, truth-based, constitutionally-grounded justice. When constitutional law and the evidentiary record are subject to the whims and political biases of advocacy justices, justice no longer exists, and our faith and confidence in the very system that preserves our liberties is diminished.   

Montanans, listen up.   Every two years, we have been electing Montana Supreme Court candidates who are blatant political advocates. There is no other explanation for why the high court is so out of step with other state courts — let alone with the fundamentally conservative values of Montana citizens — and why its twisted and legally convoluted rulings are so frequently and embarrassingly overturned.   

Because judicial elections in Montana are required to be nonpartisan, voters remain largely uninformed about the judicial (and political) philosophies of the candidates. After all, no candidate will admit to being advocacy-oriented, but the state’s wealthy trial lawyers and left-wing special interests know exactly who will do their bidding, and who will pave a legal freeway to a more aggressive, interventionist government that lines their pockets. Their massive financial backing enables those candidates to swamp the opposition in almost every Supreme Court race. 

While the court’s leftist ideology is ubiquitous, the poster for bigotry is Justice Ingrid Gustafson.  Gustafson’s in-your-face political bias is so egregious that, in this writer’s opinion, it seriously compromises her ability to function as an impartial, non-prejudicial jurist.  

Montana’s news reporters should be shining a light on her outrages, but maybe they have dead batteries in their flashlights.

For her past six years on the Supreme Court bench, Gustafson has continually displayed various partisan political flags at her Billings residence, in what appears to be a rotating schedule of her best-loved leftist causes and social commentaries for all the public to see. These include: 

Peace sign flags in various forms, historically symbolic of leftist, anti-war causes — and most recently, anti-Israel protests. One version of Gustafson’s flag sports the LGBTQ rainbow background. 

The co-exist flag, a popular left-wing symbol. 

Flags featuring yellow, white and purple stripes with two lines of stars.  Although borrowed from an image once used by the suffrage movement, now it represents leftist non-binary politics. 

Apparently, Justice Gustafson does not believe the Montana Supreme Court’s Code of Judicial Ethics applies to her. The code expressly prohibits any activity “that would appear to a reasonable person to undermine the judge’s… impartiality.”   

Recently, Democratic senators and media mouthpieces lambasted U.S. Supreme Court Justice Samuel Alito because, unbeknownst to him, his wife flew an American flag upside down for part a day in response to ongoing harassment from a left-wing neighbor. This was not a partisan act. She simply grew heart sick over all the personal abuse — abuse that would have made front page news if directed at a liberal justice’s spouse.  Yet when Justice Gustafson displays clearly partisan left wing political symbols every day, there is not a peep of protest. 

Take heed. We can no longer tolerate the partisan bigotry that holds sway among the majority of our Supreme Court justices. Justice is too fragile and too precious to entrust it to political hacks in black. As a conservative, I am not saying “elect conservative justices.” I’m saying elect true justices — men and women of integrity and impartiality, whose only “agenda” is true justice and liberty under law. 

Roger Koopman is a former Republican member of the Montana Public Service Commission.