Boiling the judicial frog

Nelson is a retired attorney and served as an associate justice of the Montana Supreme Court from 1993 through 2012.

Most of us have heard the story about boiling the frog. Drop a frog in boiling water, and he’ll jump right out. But drop the frog in cool water and then increase the temperature of the water slowly, and the frog won’t notice. Soon it will be cooked.

That’s exactly what is happening to state courts around the country. The Brennan Center for Justice comprehensively reports that as state courts have taken on greater importance over many polarizing issues — involving abortion, voting, gerrymandering, judicial selection and independence, judicial decision-making, judicial review, Medicaid coverage of women’s health, climate change, and limiting enforcement of court rulings — right-wing politicians and legislatures have redoubled their efforts to assert political power over state judicial branches and ensure judges will not be an obstacle to their partisan policy goals.

These attacks on state judicial branches have been incremental — a law here, a law there, chipping away at the third branch of government, with the ultimate goal of bringing judges and the courts under the control and heavy thumbs of the legislative and executive branches.

The political branches refuse to recognize that under our tripartite, constitutional system, judicial branches are co-equal and coordinate branches serving as checks and balances against the other two.

Montana, where I served on the Supreme Court, has not escaped these sorts of attacks. Indeed, starting with the 2021 supermajority Legislature, and continuing in the 2023 session, the political branches launched a veritable jihad against this state’s judicial branch and its judiciary. For the most part, these attacks have not succeeded. But the war goes on, nonetheless.

One of the latest attempts by the political branch camels to get their noses under the judicial tent involves the 2023 Legislature’s formation of a Senate Select Committee on Judicial Oversight and Reform. It is a quintessential example of the arrogance and hubris of the extremists in this Legislature to believe that they have either the duty or the power to oversee, much less reform, the operations or decisions of a coordinate, co-equal branch of state government.

Quite simply, the judicial branch does not work for the Legislature or the executive branch. Rather, the judicial branch serves as a co-equal constitutional check and balance on the two political branches. This most basic principle of constitutional law (not to mention, middle school Civics 101) is enshrined in Article III, Section 1 of Montana’s Constitution, which provides:

"Separation of powers. The power of the government of this state is divided into three distinct branches—legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted." (Italics added)

The committee’s opening shot across the bow of the judicial branch was its letter demanding that the Montana Supreme Court answer a number of questions involving the court’ s procedures in calling in substitute judges in some cases, in retired justices filing an amicus curiae brief and in other matters. And this follows on the heels of the 2021 Legislature’s attempts to investigate the courts’ emails and its upending the 50-year-old system for appointing judges on merit, in favor of a partisan system under the control of the governor.

These are examples only. The point is that every attempt to “oversee and reform” turns up the temperature of the water in which the political branches have placed the judicial branch.

Unless the voters stop the political branches, the judicial branch will soon be boiled. It will be cooked!