Last week at the legislature, the Chief Justice of the Montana Supreme Court addressed a joint session of the state House and Senate. He gave what is known as the “State of the Court” address. It probably won’t surprise anyone that he called for “an adequately funded judiciary.” At each Legislative session, it seems like half the people who give speeches call for spending more money.
Last week’s address is a great opportunity to observe how our system of separation of powers works. The Legislature, the Courts, and the Executive Branch are all independent, all powerful, and all have their own goals and their own purposes. When Montana’s courts want better funding, they must ask for it from the Legislative branch, and so must the executive. When the Legislature passes laws, they are enforced by the executive branch and interpreted by the judicial branch. When the Executive wants to propose a new program, he has to get it passed by the Legislature. Each branch has its own powers. Each is constantly seeking to expand its power, protect its territory from the others, and accomplish its goals.
That tension is by design. Our wise founders deliberately created a system that made it almost impossible to gather too much power together in one place. No one wants a Governor who can unilaterally proclaim what the law is – judge who’s guilty of breaking it, and throw them into prison. That’s just too much power for one person.
That’s why it’s such a problem when judges legislate from the bench. Legislating – or passing laws – is not properly something the judicial branch should do. In the American system, passing laws is the domain of the Legislature. For example, take the case of Roe vs. Wade, the court decision that legalized abortion. It was the court that made abortion legal in America. It wasn’t the Congress. It was a collection of judges who had never been elected by any member of the public who simply decreed one day that they believed the Constitution mandated that abortion be legalized.
Our great Republic isn’t supposed to work that way. Laws are supposed to represent the will of the people, and that’s why the Legislators who we vote for are the ones who should make laws, not the judges. It’s also why judicial races have become so contentious. The voters have realized that for all their talk of neutrality, judges still have a political worldview that they bring to the bench. Conservatives tend to judge more conservatively and liberals tend to judge more liberally. That’s just the way it is.
The crisis of the judicial branch usurping the role of the Legislative branch isn’t just a Montana issue. It stretches from the bottom all the way up to the U.S. Supreme Court. But it’s not something we have to accept. We get to vote for the President, who appoints Supreme Court justices. Here in Montana, we even get to vote for our state Supreme Court justices. And more important, we get to vote for our Legislators, who even now are deciding just how much money the court will have to spend.
The best thing for Montana families is to insist on judges who will never legislate from the bench. Whether you’re voting for the Governor, or Montana Supreme Court, or for Legislators who will write the budget for all-of- the above, find out where they stand on judges who make law. Only the ones who adhere to the separation of powers will make good judges for our families.