New White Paper on the Montana Supreme Court’s Activism

by Carrie Severino | October 28th, 2014

I am pleased to announce that today my organization, the Judicial Crisis Network, released a white paper by three distinguished members of the conservative movement about the Montana supreme court and its activism in defiance of U.S. Supreme Court precedent. The authors of the white paper, William S. Consovoy, Michael E. Toner, and Samuel B. Gedge, have provided some fantastic research about that court’s history of recalcitrance toward federal statutes and Supreme Court case law.

Here’s the introduction:

In recent decades, some of the highest profile refusals to follow the U.S. Supreme Court’s decisions have come out of the Montana Supreme Court. In the most colorful instance, the U.S. Supreme Court had to grant certiorari twice to prevent the Montana Supreme Court from enforcing a federally preempted state law aimed at arbitration clauses. The Montana court embarked on a similar course of disobedience following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. Less than two years after Citizens Unitedinvalidated government bans on corporate political speech, the Montana Supreme Court took up the same issue and reached the opposite result. And, in 2010, the Montana Supreme Court blessed the state’s retroactive claim of ownership over hundreds of miles of Montana riverbeds, again applying an analysis that ran directly counter to U.S. Supreme Court precedent.

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The most obvious answer to state-court indifference to the U.S. Supreme Court’s authority is to vote the offending jurists—in this case the elected judges of the Montana Supreme Court—out of office. Here too, however, Montana’s experience suggests that ballot-box accountability can face serious obstacles. In 2011, legislators presented a referendum to the Montana voters that would have refined state judicial elections. As one proponent put it, the changes would “allow the people of the state of Montana to know their candidate better and make a better decision.” Montanans never got a chance to consider the measure, though. In an extraordinary (and dubious) exercise of power, the sitting justices of the Montana Supreme Court preemptively struck the referendum from the ballot. In other words, the Montana Supreme Court has not only abandoned its solemn obligation to adhere to supreme federal law, it has resisted the effort by Montana’s political branches to address the problem.

Read the whole thing here.