State Supreme Court Chief Justice warns lawmakers against making judiciary partisan

For years, Republicans in the Montana Legislature have felt stymied by the state’s district and Supreme courts, as numerous laws passed during the last two sessions have been deemed unconstitutional after often lengthy legal battles.

This year, the GOP majority in the Legislature is proposing requested 27 bills to rein in the judicial branch, but during a joint session on Feb. 18, newly elected Montana Supreme Court Chief Justice Cory Swanson told lawmakers that tensions between the three branches of government had become elevated in recent years, and some ideas for judicial reform might go too far. 

“These pitched battles have led some to say the nonpartisan nature of the judiciary is a facade, and we should openly declare political affiliations of candidates and Supreme Court justices,” Swanson told the assembly of 150 legislators. “I understand from many of your comments and the governor’s speech that this is one of the main things you wish to accomplish.”

“I have personally stated, and been asked this question 100 times in the past year — the judiciary should remain nonpartisan despite the almost irresistible pull of partisan spending and messaging in these highly contested campaigns.” 

Swanson received applause from the entire chamber at several points throughout his State of the Judiciary address to the joint session, which followed speeches by Montana’s federal congressional delegation and remarks by the chair of the Fort Peck Assiniboine & Sioux Tribes. 

Partisan elections are one of the chief goals for Republicans this legislative session, with several bills aimed at requiring judicial candidates to declare party affiliation, allowing political parties to endorse and directly fund candidates, and allowing judges and judicial candidates to take part in partisan events. 

Swanson said his statements, which were his own and not on behalf of the entire Montana Supreme Court, are not rooted in a constitutional position but in his own commitment to decide “every case based on the facts and the law of that case, not based on the party or the affiliation of the litigants.”

“And if at least three of my colleagues have the same commitment to process, it won’t matter if we are Democrats or Republicans,” Swanson said. “So I urge you to focus the rest of your judiciary-related legislation on making the judiciary better.”

Swanson spoke about the necessity of retaining three, independent and separate branches of government, and held up the judicial branch and legislative branch specifically. 

“Our two branches have historically been the bulwark against tyranny,” he told lawmakers. “You have been the branch closest to the people. You express their will through laws, spending and taxation. And the Judiciary has been the check on executive and legislative power to prevent the popular will from destroying individual rights. Not only do we interpret the laws and the constitution, but we create a forum where citizens can dispute against their government as equals in a courtroom.”

He emphasized that within a judge’s courtroom, the lowest citizen and the strongest leader are on equal footing. 

Swanson also reminded legislators that a vast majority of all judicial work has nothing to do with politics, partisanship or “intergovernmental power struggles,” but are cases of ordinary people trying to go about their lives. 

To better help those ordinary Montanans, Swanson called for an increased number of district court judges, especially in Yellowstone County, where he said more than a quarter of all criminal cases are filed. 

He also brought up concerns about the state’s legislative records, which are dispersed among four different entities — the Montana Historical Society, the State Library, Legislative Services and the State Law Library. 

A unifying effort to consolidate those records, which include committee hearings going back decades, is paramount to ensure they are preserved and made accessible to Montanans. 

Swanson said encouraging more lawyers and judges to adopt or continue in their profession is getting harder with the rhetoric coming from the two GOP-led branches, which he said many in his profession would call “judicial harassment.”

Legislators, he said, should reject legislation that would undermine the effective functioning of the judiciary, “not because judges don’t like it, but because it will ultimately harm Montana citizens.”

“Now, as it happens, you are considering a number of bills currently that well-respected attorneys are telling you violate the constitutional separation of powers,” he said. “I urge you to listen to those arguments because they are probably the same arguments you will hear if those issues are litigated in my courtroom.”

“Some folks wonder if judges are born with black robes on … I urge you to get to know them and they will probably surprise you with their humanity and common sense,” Swanson said. “If you support my vision to increase the capacity and proficiency of the judiciary, and if you’ve trusted my judgment up to this point, I ask that you consider these remarks each time you vote on a judicial bill.” 

Micah Drew is a reporter for the Daily Montanan, a nonprofit newsroom.