‘Buckle Up’: In Montana, Republican Lawmakers Target the Judiciary

Even before the Supreme Court overturned Roe v. Wade in 2022, Montana lawmakers were determined to outlaw abortion, passing three laws restricting access. But a district judge in Yellowstone County later ruled that the laws were unconstitutional.

In April 2023, Montana lawmakers banned gender-affirming care for minors, only to have the law blocked by a Missoula County district judge. Around the same time, another judge, this time in Lewis and Clark County, ruled that the state’s support of the fossil fuel industry had violated the public’s right to a clean environment — a ruling that, like the other cases, was upheld in late 2024 by the Montana Supreme Court.

Outraged Republican lawmakers vowed to take action.

“After today, our message to the judiciary is simply this: Buckle up,” Senator Matt Regier, the incoming Senate President, and Representative Brandon Ler, the incoming House Speaker, announced in December.

Now they have come up with a remedy, as the Montana Legislature is weighing an avalanche of bills to reshape the judiciary and influence who gets to sit on the courts.

Judicial elections, which have been nonpartisan since 1935, would become partisan contests. A new court would be created to adjudicate constitutional claims, helmed by judges who aren’t elected, but appointed by the governor and confirmed by the Senate.

At least two bills have even proposed that a judge’s “facial expressions” be construed as evidence of bias, potentially resulting in disqualification.

“The Montana Supreme Court is one of the most liberal courts in the nation, so you have to wonder as a legislator, are the courts being biased?” the Senate majority leader, Tom McGillvray, said in an interview at the State Capitol with Mr. Regier. “You’ve got a de facto executive branch in the judicial branch, and that’s precipitated a lot of angst.”

As the Trump administration steps up its attacks on the federal judiciary, similar power struggles are unfolding at the state level, where Republican lawmakers often complain that the courts have become an elitist branch of government that is out of step with the electorate.

In Kansas, legislators who were angered by court rulings affirming abortion protections approved on Wednesday a ballot question for August 2026 asking voters to amend the Constitution and allow Supreme Court justices to be elected, rather than chosen by a longstanding merit-based system.

In Missouri, the House speaker pro tem floated a measure earlier this year to reduce the number of judges in a district to oust an elected judge — and fellow Republican — because he viewed his rulings on marijuana and abortion as unforgivably liberal.

And in Utah, proposals to give legislators the authority to evaluate judges and revamp the selection process for the Supreme Court’s chief justice prompted one justice to accuse the legislature of “meddling” and engaging in “retribution” for recent decisions on gerrymandering and abortion.

No state, however, has had the sheer volume — more than 30, by one count — or degree of urgency as Montana, whose legislature is one of four that convene only every other year. And to detractors such as retired judges and a bipartisan slate of current and former lawmakers, the legislative package now on the table represents an existential threat to judicial independence and the separation of powers.

“It’s just that damn dangerous, in my view,” Marc Racicot, a former Republican governor and attorney general, said over burgers at a restaurant in Helena. “If you don’t have a healthy respect for the system, then you’re going to end up cavalierly questioning everything dangerously. They want to take over control of the bar association, the discipline of lawyers, the selection of judges — they want to infuse politics.”

A former chair of the Republican National Committee who has lately run afoul of the state Republican Party, Mr. Racicot called state leaders “very shortsighted and very immature” in failing to contemplate what might happen under a weakened judiciary if the Democrats ever gained control.

“You end up with the law of the jungle replacing what has taken us twenty-five hundred years to perfect,” he said.

Because nearly all judges in Montana are elected, not appointed — and are not required to state a party affiliation — it is difficult to measure any political leanings. Democratic lawmakers who have defended the courts contend that judges have often leaned into the state’s long tradition of libertarianism, if anything; Republican lawmakers complain about judicial decisions they consider overly liberal.

Tensions began building in 2021, when Greg Gianforte became the first Republican governor in 16 years, giving the party control of the governor’s office and both legislative chambers.

With an ascendant religious right making inroads, the new lawmakers challenged norms on voting rights, higher education, vaccines, gun rights and more.

Some laws — particularly those related to abortion and transgender issues — were nullified after court challenges. Meanwhile, a law eliminating the state’s judicial nomination commission prompted a bitter squabble involving all three branches of government, which is still ongoing, in which judicial emails were seized, disciplinary charges were lodged against the attorney general and accusations of judicial bias abounded.

Republicans also took exception to new electoral maps drawn up by Montana’s redistricting commission, whose last four chairs, appointed by Supreme Court justices, have primarily donated to Democrats. Those maps eventually helped Democrats flip enough seats in the legislature to break the Republicans’ supermajority.

“Montana has gone really red, and our courts are dark, dark blue,” said Mr. Regier, a member of a prominent political family known for its unflinching conservatism. “They say they’re nonpartisan, but they’re dark, dark blue.”

With frustrations mounting over election bills, housing policies and more, the Senate established a committee on judicial oversight and reform. The Democrats boycotted.

One person who helped draft legislation calling for a new constitutional court was Robert G. Natelson, a retired University of Montana law professor and former Republican candidate for governor who has long contended that the state Supreme Court favors liberal causes.

Now a senior fellow at the Independence Institute, a libertarian think tank in Denver, Mr. Natelson said “the court is institutionally too powerful,” in part because the state does not have lower appellate courts.

Ultimately, the judicial oversight committee produced more than two dozen bills for the 2025 session.

Mr. Gianforte threw his weight behind judicial reform in his State of the State address on Jan. 13, accusing “extreme-left, dark-money groups” of pouring millions of dollars to “elect judges to do their bidding.” He beseeched the legislature to pass a bill that would identify judicial candidates by political party.

“Montanans have a right to know the values and principles of the judges they elect,” he said. “Let’s bring light to this darkness.”

Exactly one month later, speaking from the same dais as the governor, Cory Swanson, the new chief justice of the Montana Supreme Court, pushed back — surprising many legislators.

After all, he had prevailed in an expensive race in November with the backing of Mr. Gianforte and conservative and Republican groups. But future judicial races are most likely to be even more expensive. Even before Mr. Gianforte signed a bill allowing political parties to donate to judicial contests, Mr. Swanson warned of the perils of partisan campaigns and spending, “not because judges don’t like it, but because it will ultimately harm Montana citizens.”

“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.”

Jurists around the country have had similar concerns.

In recent years, Texas, North Carolina, Kentucky and Mississippi have created new courts, or changed the rules governing the judicial system, in large part because of legislators’ frustration with judges, said Michael Milov-Cordoba, counsel in the judiciary program at the Brennan Center for Justice, who prepares an annual report called “Legislative Assaults on State Courts.”

In Montana, some of the measures have been rejected by lawmakers of both parties. One proposed House resolution, for instance, challenged the bedrock principle of judicial review established in the landmark Marbury v. Madison decision from 1803, asserting that “the belief that the court has exclusive authority to interpret the constitution and that its decisions are binding on the other two branches is a myth.” It failed, 45-55.

In the Senate, Democrats have sometimes teamed up with nine Republicans viewed as more moderate to block some bills, including one that would have inferred bias from judges’ “facial expressions.” Senator Cora Neumann, a Democrat from Bozeman who sits on the judiciary committee, said many of the bills felt like “vendettas.”

“Basically, the legislature is saying, our interpretation of the Constitution is valid, and courts can’t tell us what’s constitutional and what’s not,” she said.

Montana’s Constitution, which was updated in 1972, has long been regarded as a progressive document which prioritizes privacy and individual rights. More than 100 people, including Mr. Racicot and several retired judges, even rallied in the State Capitol’s majestic rotunda in February to support the state constitution — and to criticize the judicial bills.

“The message is, ‘If you’re not going to win, let’s change the judges,’” said Raph Graybill, a constitutional law lawyer in Helena who has run as a Democrat for attorney general and lieutenant governor, and has litigated numerous abortion-related cases before the Montana Supreme Court.

One of those at the rally was Taryn Van Steeland, an organizer for Forward Montana, which mobilizes young Montanans on issues such as the environment, reproductive rights and housing. During a recent hike up an icy trail in Bozeman with Lyla Brown, a senior organizer with the nonprofit, Mx. Van Steeland said there was growing concern among young people over the bills targeting the judiciary, given recent decisions that involved young activists, as well as the successful ballot initiative to enshrine abortion in the state’s Constitution.

“To see younger folks showing up for that and be like, ‘We love our Constitution!’ — that is really cool,” Mx. Van Steeland said. “I think that comes from understanding what our Constitution has that makes it special, and what’s at stake when we are changing it.”

It is too early to predict how many more bills will pass by the time the legislature adjourns on May 3. Speaking to reporters in his capitol office recently, Representative Steve Fitzpatrick, the Republican majority leader, said there was “an appetite here for some type of partisan judges.”

Mr. Regier, the Senate president, also expressed confidence.

“The whole focus of shining the light here on — ‘What does our judicial branch need to look like?’ — has brought some really good things, that, to me, shouldn’t be partisan,” he said. “Just the best way of doing it.”