Montana’s top court, a bulwark against GOP abuses, could become a conservative bastion next year

The Montana Supreme Court has been the state’s last remaining bulwark against the GOP’s assault on democracy and abortion rights since Republicans won complete control of state government in 2020, but that could all change next year. Chief Justice Mike McGrath and Associate Justice Dirk Sandefur, who are both aligned with the court’s liberal wing, are retiring, and their replacements could determine whether the court remains an independent check on GOP abuses or simply becomes a rubber stamp.

Justices are elected for eight-year terms in officially nonpartisan elections, and currently, the court does not have a strong ideological lean. The Missoula Current previously described its membership as including three liberals, two conservatives, and two swing justices. However, if conservatives were to replace both McGrath and Sandefur, that would give the right-wing bloc four votes and, with that, a majority.

In recent years, the two swing justices have sided with their liberal colleagues in several consequential rulings. Most prominently, in a 5-2 decision last year, the court blocked Republican lawmakers from proceeding with a ballot measure that would have let them gerrymander the court itself. Nonetheless, Republicans have been able to enact other efforts to bend the courts to their will, such as the elimination of the state’s judicial nominating commission. As a result, GOP Gov. Greg Gianforte now has free rein to fill vacancies arising midterm.

Last year, the Supreme Court also unanimously upheld a lower court’s ruling that temporarily blocked a trio of anti-abortion bills passed by GOP lawmakers. That decision relied on a landmark 1999 precedent known as Armstrong v. State, which held that the state constitution protects the right to abortion under its explicit guarantee of privacy rights—language that isn’t found in the U.S. Constitution. However, a future conservative majority could overturn Armstrong and pave the way for a ban on abortions.

In the lead-up to last year’s court elections, one prominent anti-abortion activist made that threat crystal clear. “We can either amend the Montana Constitution to ban abortion or we can replace enough justices on the Montana Supreme Court to overturn the Armstrong decision,” said the Montana Family Foundation’s Jeff Laszloffy.

While swing Justice Ingrid Gustafson won reelection last year by a 54-46 margin against Republican James Brown, conservative Justice Jim Rice won another term without serious opposition. Next year, conservatives will likely have a clearer opening to flip McGrath’s and Sandefur’s seats without the two incumbents running, particularly since Montana will likely support Donald Trump by a wide margin once again.

Abortion-rights activists, aware of the possibility that the court could soon grow hostile, recently launched a ballot initiative effort to amend the state constitution to explicitly guarantee the right to abortion, and the 2022 elections give them some reasons for optimism.

Last year, Montanans voted 53-47 to reject a GOP-sponsored measure called LR-131 that would have required doctors to take drastic steps to treat infants born with lethal abnormalities, or face criminal penalties. While the right to abortion was not directly implicated, abortion-rights advocates opposed it for chipping away at reproductive autonomy.

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