Jim Goetz: Disturbing threats to the independence of the courts

This “shock” was a pretext. The Judges Association routinely lobbies the legislature on matters of vital concern to the courts. These lobbying efforts were well known to all legislators — after all, they were the persons being lobbied.

When these emails surfaced, the Montana Republican Party circulated an incendiary mailer accusing the Montana Supreme Court of improprieties and demanding that it “BE INVESTIGATED.” This was an insult to our hardworking Supreme Court justices, all of whom are persons of integrity who have made serious sacrifices to serve the public. This misguided attack is unfair because judges are expected to rise above political controversies and are ill-equipped to defend themselves.

During the 2021 legislative session, the Legislature subpoenaed individual Supreme Court justices and sought, by subpoena, a large set of emails from the Court Administrator, many of which contained highly sensitive personal information, such as health records. After much litigation, most of these subpoenas were quashed.

The Legislature then appointed a “Special Joint Select Committee on Judicial Accountability and Transparency.” The Republican majority recently released a draft report. This report is highly partisan and seriously misleading — and dangerous because it threatens to serve as a road-map for efforts to tinker with the courts in the 2023 session. The draft report unfairly criticized Chief Justice McGrath. It claims his “gross mismanagement…has led to a loss in public confidence of the impartiality and integrity of Montana’s judicial branch of government.” That’s a laugh. The Republicans have been campaigning stridently since 2021 to undermine public confidence in the courts.

The Republican Party already has a supermajority in the Legislature and is entrenched in the executive branch. But that is not enough. They now want to control the courts in a partisan way. In the last election, Montana’s Republican governor disregarded Montana’s important tradition of non-partisan election of judges by endorsing and fundraising for a particular candidate to challenge an incumbent. Their choice was woefully unqualified (Montana’s “Herschel Walker”). Fortunately, the voters rejected him.

Given the assaults on the independence of the judiciary, we should not forget our first principles. First, ours is a system of limited government. Second, to protect against autocracy, the Founders embraced the critical principle of separation of powers. To that end they established three separate government branches: the executive, the legislative, and the judicial. The very essence of this system means that each branch must be separate and independent and one branch must act as a check on the others. Thus, the people should be leery when a political party which dominates the executive and legislative branches threatens corrosive inroads into the independence of the judicial branch.

In 1788, one of the founding fathers, Alexander Hamilton, wrote in Federalist Paper No. 78, in advocating for the adoption of the U.S. Constitution, that of the branches of government, courts are the “least dangerous” branch. What he meant is that all branches of government are potentially dangerous. But without government, we have no order, no rule of law and no civilized society. Thus, the genius of the Framers was the development of a system which had adequate power to govern competently, but not abusively. That’s why the courts, which serve as a bulwark to protect individual liberty, are the “least dangerous” branch.They have no power to execute the laws, no military, no power of the purse — all they have is the moral suasion of their actions.

These are core constitutional values. All persons calling themselves true “conservatives” should support these first principles.

While some legislators sulk because their measures are ultimately voided by the courts, the answer is to draft better legislation which comports with the Constitution. Rather than sulk, they should celebrate when courts perform their legitimate functions. As Hamilton said: “There is no liberty if the power of judges be not separated from the legislative and executive powers.”