As absentee ballots arrive and voting begins, nary a day goes by that the race for Montana Supreme Court is not mentioned in a major newspaper somewhere across the state. The question is, “Why?” Why have Supreme Court races gotten so competitive? Why has the confirmation process for U.S. Supreme Court justice gotten so contentious? Some would argue that the courts have brought this on themselves. The courts, the weakest of the three branches according to James Madison, have assumed for themselves a quasi-legislative role, in some cases, actually making law rather than simply interpreting it.
Case in point: In 1972, Congress passed the Equal Rights Amendment and sent it to the states for ratification. After the ten-year deadline and a two-year extension, it failed to get the 38 states required for ratification, and officially died in June of 1982. Now fast forward to 2008: Hillary Clinton is running for President, and she’s asked if she’ll push for reconsideration of the Equal Rights Amendment. She said she didn’t need to because most of what was in the amendment had already been implemented by the courts. Think about that answer for a moment. Article V of the U.S. Constitution lays out a specific process for amending the Constitution. Following that process, we specifically rejected the amendment, but it was later implemented by the courts. There’s no mechanism in the Constitution for the courts to even propose, much less pass, an amendment. Yet, they did it and they continue to do it, and that’s why elections and appointments of judges are now so contentious. For all their talk about ruling strictly on the law, people know innately that a judge’s worldview plays a role in how they interpret the law. It’s human nature, and we see it all the time. Justice Ruth Bader Ginsberg, arguably one of the most liberal justices on the U.S. Supreme Court, used to be chief legal counsel for the ACLU. Right here in Montana, former Supreme Court Justice Jim Nelson once stood in the Rotunda of the State Capitol at a Planned Parenthood rally and said that we must do everything in our power to keep abortion legal. He did that while he was still sitting on the bench. Only later in a law review article did he reveal that he had become an atheist and it was clear that his worldview played a role in decision after decision.
Politicians, including judges, should give the electorate more credit. They can talk about neutrality all they want, but human nature is what it is, and you cannot check your life experiences and worldview at the door. The courts are increasingly taking the people in a direction they would never vote to go, and the people are waking up. Enough states have defined marriage in its traditional form to ratify a federal Constitutional marriage amendment, yet the courts mandated same-sex marriage. With the court’s ruling by Judicial Decree and governors and the President ruling by Executive Order, Congress and state legislatures are quickly becoming irrelevant. It’s high time for us as a people, with one united voice, to say to the courts and to the Executive: “Enough is enough. Stop acting as a super-legislature, implementing by decree that which is not achievable by political consensus.”
As you vote for Montana Supreme Court Justice, choose the candidate whose values most closely match your own. The candidates in the contested race for justice are two VERY different people and both will bring THEIR worldview to the bench.