How Not to Criticize a Judge

The Montana Supreme Court recently splintered over internal accusations of partisan bias.

On Wednesday, the U.S. Supreme Court issued an opinion in U.S. v. Skrmetti, holding that a Tennessee ban on gender-affirming care for trans minors didn't violate the Equal Protection Clause. State Court Report's Kasia Szymborski Wolfkot explains how state courts may interpret such bans differently.

---

Two conservative justices on the Montana Supreme Court recently suggested that partisan bias drives some of the court’s decisions. It was hard to believe, they argued in dissent, that a ruling against the Republican governor in a public records case was “simply another coincidental Republican defeat in a run of bad case outcomes.”

It was a very serious allegation that prompted sharp rejoinders from the targeted justices, who argued that their colleagues’ statements were not only false but dangerous.

There’s also important context in Montana. Republican legislators are calling for greater political influence over the state’s courts, including the adoption of partisan judicial elections. Indeed, the dissenting justices appeared to suggest that partisan behavior by the court had invited this targeting: “We have met the enemy, and he is us.”

The case itself, Montana Environmental Information Center v. Office of the Governor, is in many ways a surprising vehicle for such acrimony. The question before the court was whether a party who vindicates their state constitutional “right to know” in a public records dispute is entitled to a presumption that they should be awarded attorneys’ fees. The operative statute states that fees “may” be provided.

In an opinion by Justice Laurie McKinnon, the court ruled in favor of a presumption towards attorneys’ fees. McKinnon reasoned that litigation under the right to know is a “public service” and should be accessible to the public. Justice Beth Baker authored a dissent arguing that the decision whether to award fees should be left to the trial court, subject to review for abuse of discretion.

Personally, I think the majority had the better argument. The absence of fee shifting is a major hurdle to state constitutional development. But Baker’s dissent was far from frivolous, and overall, the dispute was not exactly the stuff of front-page headlines.

Yet the decision set off a judicial flame war. In a pair of dissents (not joined by Baker), Justice Jim Rice and the court’s new chief justice, Cory J. Swanson, characterized the majority’s ruling as “essentially based upon no governing law at all.” This “legal vacuum,” they argued, opened the door to justices imposing their “personal preferences, desires, agendas, and even biases, whether knowingly or not.” The dissenters then pointed to a series of recent Montana Supreme Court rulings against Republicans or Republican-passed laws. Partisan bias, they suggested, had led their colleagues to “weaponize” the relevant provisions.

In a concurrence responding to Rice and Swanson, Justice James Shea emphatically rejected their claims of partisanship. He pointed to high-profile prior rulings by the court against Democratic governors, the fact that the current governor has won two of the three cases in which he was a named defendant, and that the state has won as a defendant in approximately 71 percent of cases before the high court since the governor took office.

McKinnon also issued a concurrence to her own opinion, condemning “a highly inappropriate and unprofessional attack . . . upon the Court as an institution, and on the integrity of myself and my colleagues as jurists.” She lamented that the justices’ dissent will “affect relationships between the justices and undoubtedly be seized upon by those holding the Court in disrepute.”

Judging is difficult. State supreme courts rule on high-profile controversies. And we live in a political culture where judges are regularly targeted as partisans for issuing unpopular rulings. At the same time, we live in a legal culture where there simply isn’t a single accepted methodology for how to judge cases. Part of judging may be to call balls and strikes, but the real job is defining the strike zone. There needs to be space to disagree strongly with a judge’s reasoning without ascribing bad faith, and judges should model that behavior. Dissents like this seem more likely to fan the fire of political attacks.