The conservative justice of two members of the Montana Supreme Court recently suggested that partisan bias drives some of the court’s decisions. They are in dissent, and it is difficult to argue that a ruling against the Republican governor in a public record case is “simply a different accidental Republican defeat in the outcome of a bad case.”
It was a very serious allegation that prompted a sharp rebuttal from the justice of the target, who claimed that the co-worker’s statement was not only false, but also dangerous.
Montana also has important context. Republican lawmakers are calling for greater political influence on state courts, including the adoption of partisan judicial elections. Indeed, opposing justice seemed to suggest that partisan actions by the courts invited this target: “We met our enemy, and he is us.”
The case itself, Montana Environmental Information Center v. Governor’s Officein many ways, it’s an incredible vehicle of such a denunciation. The question before the court was whether a party establishing the state’s constitutional “right to know” in a public record dispute is entitled to the presumption that attorney’s fees should be awarded. The surgical method states that fees may be “provided.”
In the opinion of Judge Laurie McKinnon, the court ruled in favor of an estimate of lawyers’ fees. McKinnon reasoned that the lawsuit under the right to know is a “public services” and should be accessible to the public. Judge Beth Baker wrote a dissenting opinion arguing that if the fees are to be judged for abuse of discretion, the decision to award should be left to the court of law.
Personally, I think there was a better discussion among the majority. The lack of shifts in fees is a major hurdle for stating the development of the constitution. But Baker’s opponents were not frivolous and overall, the conflict wasn’t exactly the right frontline headline.
However, this decision sparked a fire war of justice. A pair of opposition (without Baker joining), Justice Jim Rice and the new Supreme Court justice of the Court, Cory J. Swanson, characterized the majority ruling as “essentially not based on governance law at all.” He argued that this “legal vacuum” opened the door to justice that imposes their “personal preferences, desires, agendas and even biases.” Opponents later pointed to a recent Montana Supreme Court ruling on the Republican or Republican Members Act. They suggested that their colleagues led them to “weaponize” relevant regulations.
In a correspondence with Rice and Swanson, Judge James Shea emphasized the partisan claim. He pointed to a well-known court prejudice ruling against the Democratic governor. The fact that the current governor has won two of the three cases he was appointed, and that the state has won as a defendant in about 71% of cases before the High Court since the governor took office.
McKinnon also agreed with her own opinion, accusing her of “a very inappropriate and unprofessional attack, and for her integrity towards the court as an institution and for my integrity as a jurist.” She lamented that judicial opponents “will affect the relationship between judges and will definitely be seized by those who are detaining the court.”
The examination is difficult. The state Supreme Court governs famous controversies. And we live in a political culture where judges are regularly targeted as partisans to issue unpopular rulings. At the same time, we live in a legal culture and have no single accepted methodology of how to judge cases. Part of the judging may be to call out the ball and strike, but the real job is to define the strike zone. There is a need for space to strongly oppose judge reasoning without being attributable to malicious intent, and judges should model their actions. Such opponents seem likely to incite the fire of political attacks.
Alicia Bannon is the editor-in-chief of the state court report. She is also the director of the Brennan Judicial Center’s Judicial Program.
Suggested Quote: Alicia Bannon, How to avoid criticizing a judgesᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (June 19, 2025), https://statecourtreport.org/our-work/analysis-opinion/how-not-criticize-judge.
