Republicans in Montana and other states complain that liberal judges are tossing out the laws they pass. Now, conservative legislators are trying to change the rules, and the judges.
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.
At top left, Senator Tom McGillvray, the majority leader of Montana, in his office at the state capitol.