Montanans deserve a fair and impartial judiciary

It’s time to let you in on a little secret about America’s judicial system: we’re doing it wrong.

We read every day in the news about a conflict in Montana or somewhere around the country where contentious political issues are being settled in the courtroom. It’s become such a regular occurrence that a cottage industry has developed to interpret the legal rulings and their implications for all of us.

The newness and novelty of judicial activism has long ago worn off and now it’s become the norm. But for most of our country’s history it wasn’t this way, and it doesn’t have to persist.

Yes, America is divided. Yes, there is political disagreement and conflict in every State, and to a lesser degree in our local communities. And yes, disputes often end up in court. So far, so good. That’s how our system was designed.

But it’s gone too far. Too frequently on too many issues the courts have become the great referee and arbiter of American politics and culture, with too-polarizing outcomes. Both sides of every dispute rush to the courthouse, seeking injunctions, the re-writing of laws by judicial fiat, and of course attorney fees and damages.

Some courts have taken advantage of this hyper-partisan era by departing from the fundamental principles of judging, and have instead become activist law-makers instead of law-interpreters. Once this trend starts it can become a vicious cycle. The more activist the court is inclined to be, the more it invites lawyers and litigants to seek out an activist result from that court.

That’s not how it’s supposed to work. The people are supposed to settle their policy disputes through free and fair elections to choose lawmakers and executives in the political branches. Those partisan officials select the policies and make the laws for our republican form of government. The extent of the judicial system’s involvement is supposed to be to analyze the intent of the legislature and interpret the law.

The Montana Supreme Court is not immune from this nation-wide sickness of judicial activism. I’m running for chief justice of the Montana Supreme Court because I want to return the court to its correct function as an interpretive, not law-making, body.

I want to defuse the conflict within our state government by confining the court to its role of strictly and modestly determining what the law is, not what it should be. And I want to fight the politicization fire with the water of fair and impartial court rulings, no matter the issue and no matter the people involved in the lawsuit.

In my campaign across the state, I have heard the same universal request from the far left to the far right, and everywhere in between: give us fair and impartial judges. The voters are not asking for a partisan court. They don’t want a judge that decides the outcome before he or she hears the case. They want to have confidence that in Montana we believe in the words equal justice under law.

We’ve been doing it wrong. Please help me to start doing it right.

Cory Swanson is the Broadwater County Attorney. He is running for chief justice of the Montana Supreme Court.