Amid Opposition, Bill to Shrink Montana Supreme Court Moves Forward 

After facing numerous opponents — including the chief justice of the Montana Supreme Court — and no proponents during a recent hearing, a bill to reduce the number of justices on the Montana Supreme Court passed committee on a party line vote this week and will now head to the floor of the Montana House. 

House Bll 322, introduced by freshman Rep. Lukas Schubert, R-Kalispell, would reduce the number of associate justices on the Montana Supreme court from six to four. Counting the chief justice, this would take the total number of justices on the state’s highest court down to five from its current seven. The bill would take effect in 2030 by eliminating the two judicial elections slated for that year. 

Schubert, the bill sponsor, testifying before the House Judiciary Committee on Feb. 7, said the legislation would save the state over $1 million annually and would help rein in its costly bureaucracy. 

“It’s not our money. This is our constituents’ money and there are better things to spend this $1.2 million on,” Schubert said.  

Around a dozen opponents — including Montana Supreme Court Chief Justice Cory Swanson and representatives from numerous legal organizations — warned lawmakers that shrinking the court would burden justices and court staff, delaying key rulings and reducing the number of cases the court is able to hear each year. 

Swanson, the newly inaugurated chief justice and former county attorney who was backed by conservative groups during his 2024 race, described the complex and time-consuming work of the state’s high court. In describing an upcoming opinion that took him nearly three hours to re-draft, Swanson asked lawmakers, “Do you want your Supreme Court justices to be able to do that?”

He said, “You want your justices to be able to spend the time and attention necessary to craft good opinions, to give clear interpretations of the law. That’s it.”

Lobbyists representing county attorneys, trial lawyers and the state bar argued that Montana’s unique judicial structure makes a seven-member Supreme Court critical should cases continue to move through the justice system in a timely manner. Montana is one of eight states that does not have an appellate court, meaning rulings made in district court are appealed directy to the Supreme Court. 

If the number of justices is reduced, opponents argued, appeals will take longer, leaving plaintiffs in jail or businesses shuttered as they await dispute resolutions. 

Brian Thompson, representing the Montana County Attorneys Association, said, “Justice delayed is justice denied.” 

Schubert argued a legislative proposal to create a new chancery court in Montana, if passed, will alleviate the burden on the Supreme Court. Republicans have proposed creating a new court that would hear cases related to “alleged unconstitutionality” of legislation, land use and business issues. Both Delaware and Wyoming have established chancery courts to hear business matters. 

Swanson, however, said the chancery court would not act as an intermediary in the way an appellate court does, meaning district court decisions would still be appealable to the Supreme Court.  

Testifying remotely, former Montana Supreme Court Justice Patricia Cotter told the committee, “This bill is arbitrary. It makes no sense, and it will kneecap the performance of the court to the detriment of your constituents who deserve timely disposition of their cases but will not get it.”

Speaking on behalf of the state bar — which has come under criticism from Republicans in recent months — attorney Bruce Spencer said that the Legislature does not have the authority to shrink the number of justices on the court. 

The Montana Constitution permits the Legislature to increase the number of justices from four to six, which it did in 1979 in response to an overburdened court calendar. The Constitution says nothing explicitly about the body’s ability to shrink the court. 

Numerous lawmakers asked Swanson to interpret whether or not the Legislature would be constitutionally permitted to shrink the court, which he declined to comment on. 

“You’re asking me for a constitutional interpretation that I’m not going to be able to give you,” Swanson said. “… I’m urging this committee to view this as bad policy that’s going to be counterproductive. Bad policy doesn’t necessarily mean unconstitutional.”

This is the second time in two sessions lawmakers have attempted to shrink the Supreme Court. A similar bill brought by Sen. Barry Usher, R-Laurel, died on the Senate floor in 2023 after 10 Republicans joined Democrats to vote it down. 

Republicans this session have made a concerted effort to curb the power of the state’s judiciary, which they say has subverted the will of the people in recent years by striking down numerous GOP-backed laws. Schubert and other Flathead Valley Republicans have figured prominently in such efforts. 

GOP judicial reform bills met mixed fates during key votes on Friday. On a 25-25 vote, the Senate struck down proposals to put the Montana Judicial Standards Commission under the Justice Department and to ban a judge from chairing the commission. A bill allowing political parties to contribute to judicial candidates passed the Senate by just one vote. 

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