Parking the court

President Franklin D. Roosevelt must have known just how today’s Montana Republican leadership feels. Full of important ideas for rebuilding America in the wake of the Great Depression, Roosevelt was stymied by the Supreme Court which ruled that many of his grand plans were unconstitutional. He decided that the most effective means toward having his way was to change the only branch of government that stood against him, and the plan he devised was to expand the number of justices on the court and appoint new Justices who agreed with him.  

“Packing the court”, it was called. It didn’t work out the way he planned. 

That was because of the senator from Montana, Burton K. Wheeler. Wheeler was an ardent Roosevelt supporter but opposed the court-packing scheme. He wrote, “Create now a political court to echo the ideas of the Executive and you have created a weapon ... A weapon whose use is only dictated by the conscience of the wielder.” 

And then there’s Montana. Not content with holding every statewide office and supermajorities in both houses of the Legislature, Montana Republicans see only one thing holding them back — an independent Montana Supreme Court. 

In Montana, Republicans have been miffed because the Montana Supreme Court has ruled that several laws passed by the Republican-dominated Legislature are unconstitutional. Like Roosevelt, they want more power. Like Roosevelt, they want to weaken the court. 

But a major concern of the founders of America was to limit the power of the government, particularly the potential concentration of abusive power in any one branch. Each branch of the government — the presidency, the Congress, the courts — was designed to limit the power of the other branches. While it was expected that they would work together, it was also expected that they would be adversaries when necessary. The people who founded the U.S. feared nothing more than a person or institution with absolute power.  

In writing the Constitution they relied on their study of ancient nations that, once great, had disappeared. The founders understood that in many cases absolute power was the engine of their destruction. Once power becomes too concentrated there is no way to curtail it. Opposition to the powerful becomes treason in the eye of the rulers. 

The way to make sure that power did not corrupt the new nation was to design a system — like ours — with checks and balances.  

For Montana Republicans, the logical path toward more power would be to bring the court more in line with the thinking of the Legislature and the governor. Well, they’ve tried their best. 

In the 2023 session a bill that would have made Supreme Court justices and district court judges run as a member of a political party failed. I predict it will be back. Since most Montanans seem to be Republican these days, the thinking went, that should make it easier to elect Republican judges. Since statehood, Montana has never elected judges on a partisan basis. Just because we’ve always done it that way doesn’t make it right, but it doesn’t make it wrong, either.  

Then there is the Legislature’s “Select Committee on Judicial Oversight and Reform,” created by and chaired by Senate President Jason Ellsworth who lost his Republican primary election to be the clerk of the Montana Supreme Court. They have it all figured out.  

According to the Daily Montanan of Aug. 20, 2024, they are contemplating a bill to create “constitutional courts” with members “appointed by the governor to decide constitutional issues.” That is what you call a “work around” of epic proportions. If the court was a car, it would be like putting the legitimate court in the parking lot and driving around in a stolen court. 

The point is this; the courts are not supposed to be there to support the Legislature or the governor, no matter which political party may be in power. The courts are there to be an independent agency that interprets the law in cases that are brought before it. If the Legislature doesn’t want to lose in court, it shouldn’t pass unconstitutional laws. Their own lawyers could tell them that much. Well, maybe they already have. 

Jim Elliott served 16 years in the Montana Legislature as a state representative and state senator. He lives in Trout Creek.