Justice at Risk: Montana’s Fight
For Impartial Courts
James C. Nelson,
Justice, Montana Supreme Court, Retired
September 17, 2013
Thank you for inviting me to speak to you today; it is good to be back at the
Law School.
We gather here on Constitution Day to celebrate the Constitution of the
United States. Our Constitution is 226 years old today; it was signed on September
17, 1787, in Philadelphia by 38 of 41 delegates to the Constitutional Convention,
and became the supreme law of the land when it was ratified by 11 States on
March 4, 1789.
For over two centuries our Constitution has weathered everything that our
Country—indeed, our world—could throw at it: foreign and domestic wars, social
upheavals, economic good times and bad, terrorist attacks, unimaginable changes
in our people, business, environment, science and technology. And, through all
that our Constitution has stood solid against every test; the vision those who wrote,
debated, and finally signed that document as persevered for more than 200 years.
The tripartite form of republican government that the framers established for our
Country has survived to this day. Our Constitution still stands as a document for
the ages.
Yet, we know that history repeats itself; and once again the framers’ vision
of a government for We the People is under attack by forces of power, privilege
and greed. It is to part of this clear and present danger that I want to address my
remarks today. And these are my own thoughts; I am not a spokesperson for
Montana’s Supreme Court or any of the organizations I refer to in these comments.
It is Civics 101 that the first and second branches of government—the
legislative and executive branches are the political branches. In those branches we
expect partisanship and advocacy. The legislative branch is called the peoples’
branch because those elected to that branch are elected to represent their certain
constituents and to fight for their interests. Similarly, the executive is elected by
the people to represent the ideology of the majoritarian political party. Indeed,
though, it might be fairly argued that during the last decade zealous partisan in
both the legislative and executive branches has overreached to the point that, no
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longer, is the good of the State or the Country being sought, but, rather, it is good
the party that controls.
We expect—or, better said, we must expect—something different from the
third constitutional branch of government, the judiciary. Again, it is Civics 101,
that in the federal system trial and appellate judges are appointed. In the states,
justices and judges may be appointed or elected. According to Justice at Stake, in
29 states justices of the state supreme court are appointed through some sort of
merit selection process. In the remaining 21 states justices are elected. The Center
for American Progress reports that 8 states elect or select their justices by some
sort of partisan process. In Montana, with some exceptions, appellate court
justices and trial judges are elected in non-partisan elections.
I am not here to debate which system is best. Regardless of the method of
selection, however, politics does play a role in the way we select or elect our
justices and judges. The magnitude of the role depends on the State and the method
of selection. Personally, I think Montana does it right—electing justices and
judges to specific terms and holding those public officials directly accountable to
the voters. It is my hope Montanans can continue to do that.
What I am here to state unequivocally, however, is that regardless of how a
justice or judge is elected or selected, once that man or woman takes the oath of
office and dons the black robe of judicial authority, then his and her official
decision making must be guided by three bedrock principles: fairness, impartiality
and independence.
Fairness encompasses notions of candor, civility, decency, equity, honesty,
tolerance, truth and veracity. Impartiality brings to mind the idea of neutrality—
taking neither one side nor the other until all the facts are in and the legal
arguments are made and deliberated. Independence, in the judicial sense, means
that the judicial making process is accomplished separate from the workings of the
other two branches and, most importantly, apart from political, religious, social,
economic and majoritarian ideology. Courts function independently of the other
two branches of government; and the solemn obligation of the men and women
who serve as justices and judges is to support, protect and defend the Constitution
of the United States and the Constitution of their particular state and to adjudicate
cases based only upon the facts of the case and the applicable law. Each justice and
judge takes an oath to do specifically that.
That is how people expect their government to work; and the people, for
whom, after all, all of our governmental institutions are instituted, have the right to
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demand--and they do demand--that the three branches of government actually
work in that fashion.
No woman or man, no business, no governmental or private institution,
wants to come to court and stand before a judge, where the fix is in. No one wants
to litigate in a court were the justice or judge is neither fair, nor impartial nor
independent. Every litigant is entitled to a day in court where the outcome of the
case is decided on the facts and applicable law—not on the justice’s or judge’s
political, religious, social or economic philosophy and, most importantly, not on
the basis that he or she is beholden to someone or to some entity for being selected
as a judge in the first place. Quite simply, the wheels of justice are not supposed to
be greased with money and obligation.
Yet, for all of the good design and noble intentions of the framers of our
tripartite system of government, we are now facing a time when these ideals are
being turned on their head. As to the courts and judiciary, we are entering a time
in our history when Justice is at Risk.
We are all familiar with the United States Supreme Court’s decision in
Citizens United. The full ramifications of this case have yet to be written. Suffice
it to say for our purposes here that Citizens United ushered in the unprecedented
use of dark, individual and institutional mega-money to influence elections and,
effectively, to silence the voices of individual small contributors and ordinary
voters. The Supreme Court’s approach and subsequent court cases have chipped
away at contribution limits, imposed upon individuals, corporations, unions,
special interests groups, “non-profits,” and trade associations. Citizens United has
already resulted in millions of dollars pouring into elections with little or no
disclosure of the source of funding and with little, if any, accountability for the
truth and accuracy of the messages. Indeed, candidates are being “marketed” to
voters in the same fashion that fast food and frozen vegetables are hawked to
consumers. To quote Warren Susman, we have changed from a culture of
character, into a culture of personality.
Now according to a majority of the Citizens United Court, contributions
paid directly to a candidate breed corruption quid pro quo—I give you money; I
get your vote. However, corporate expenditures made on behalf of a candidate do
not have any such corruptive effect because I am simply providing the public with
information about you or about your opponent. For those living in a parallel
universe that nuance may make sense, but, in reality it is a dichotomy grounded in
utter fiction. Either way you cut it the contributor or expender is using a lot of
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money to influence an election and to secure a vote in favor of or against a
candidate or issue.
Worse, the Citizens United canard presents a clear and present danger for
the states, like Montana, where voters elect their judges and justices. Citizens
United applies to judicial elections, too. And, make no mistake, its effects will
come to dominate judicial elections and, ultimately destroy those three bedrock
principles—fairness, impartiality, and independence.
Montanans, rightly, demand a judicial system that is grounded in these three
principles. And, those principles are threatened when corporate and special interest money drive judicial elections. This is not just an idle or speculative
statement. Indeed, there is proof. The verification of the Citizens United effect is
found in an objective, non-partisan report—Justice at Risk: An Empirical Analysis
of Campaign Contributions and Judicial Decisions. 1
This study, released this past June, was sponsored by the American
Constitution Society for Law and Policy. Justice at Risk provides critical data on
the effect of campaign expenditures on judicial behavior from 2010-2012. The
empirical research underlying Justice at Risk, involved a team of scholars guiding
the work of numerous research fellows. Over 2,345 business-related supreme
court decisions from all 50 states were examined for the two year period, and these
data were merged with over 175,000 contribution records that detailed every
reported contribution to a sitting state supreme court justice. Justice at Risk’s
findings are disturbing. Let me give you just a few of the highlights.
During the last decade contributions from business groups, and lawyers and
their respective lobbyists have dominated interest group contributions--with
unions, by contrast, contributing a small fraction to judicial campaigns.
While contributions to candidate campaigns from business groups and from
those representing the plaintiffs’ bar are approximately equal (30% vs. 28%)
business groups overwhelmingly dominate interest group spending on television
advertising—the most expensive and effective form of campaign activity.
Certainly, any interest group that is able to marshal campaign contributions
might exert influence over judicial elections. However, with their unambiguous
agenda favoring business and pro tort-reform, business groups typically focus on
electing justices with that pre-disposition. Moreover, Justice at Risk shows that
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This report can be examined on-line at www.acslaw.org/state-courts/justice-at-risk
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business groups regularly disguise their campaign support by channeling funds
through nonprofit groups with inspirational but completely opaque names—i.e. via
dark money.
On the other hand, the study also demonstrates that the plaintiffs’ bar
typically represents a much more diverse range of clients and economic interests,
and is, thus, less inclined to favor a judicial candidate with a particular ideological
agenda or pre-disposition.
Justice at Risk shows that holding factors like individual justice
characteristics, ideology and data about state law and political climate constant,
there is a significant relationship between business group expenditures to state
supreme court justices and the justices’ votes on cases involving business matters.
The numbers are stark—the more campaign expenditures a justice receives from
business interests, the more likely the justice is to vote in favor of the business in
court cases.
While some might argue that the judges are simply following their own
ideological preferences and that business expenditures for a judge merely reflect
businesses’ desire for pro-business judges, Justice at Risk demonstrates the
opposite. The report found that the influence of corporate campaign contributions
goes far beyond ideological leanings. The largest influence was on judges
affiliated with the Democratic Party, who are assumed to be less ideologically
predisposed to favor business interests.
Importantly for Montana judicial elections, the data show expenditures
influenced judges’ decisions in both partisan and non-partisan election systems.
The report reveals the influx of expenditures generated by Citizens United and
subsequent cases is having significant impact on judicial impartiality. The data
demonstrate there is stronger correlation between business contributions and
judges’ voting in the period from 2010-2012, compared to 1995-1998. And,
unfortunately, Justice at Risk concludes that there is no sign that the politicization
of supreme court elections is lessening. Indeed, powerful interest groups’
influence on judicial outcomes will only intensify.
And let me emphasize that point in the most candid way I can. Mega money
contributions from institutions, individuals, corporations and special interests and
the influence of lobbyists already exert inordinate control over the legislative and
executive branches of government—especially at the federal level. And, those
same moneyed interests know that, to totally be in control of the power of
government, they must also exert that same inordinate economic domination over
the judicial branch. After all, it is the courts which enforce the Constitutional rights
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of people; that protect consumers and the injured; that ensure that criminal
defendants’ rights are enforced; that secure the guarantees of open access to the
civil judicial system; and that serve as the bulwark between the people and the
abuse of power and privilege by governments, individuals, business entities,
corporations and institutions. The mega money folks know that to control
government they have to control all three branches. To date, the judicial branch
has always been beyond their grasp; judges have always been the fly in the
ointment.
But the high rollers know that the best way to secure a favorable result for
their case or their industry or special interest is to make sure the justice or judge is
beholden to them. Mega money aims to insure that the jurist becomes and stays
justice or judge because of dark campaign expenditures and contributions. This is
what we saw in the Caperton case; a large corporation spending several millions in
a candidate’s campaign to elect that person to the state supreme court and to then,
not surprisingly, secure a favorable result in that corporation’s appeal.
The point here is that a fair, impartial and independent judiciary is the only
thing standing between the people and the abuses of the Constitution, the law and
justice itself, by king-makers and corporations. Citizens United and its
predecessors teach that money is speech. And as money corrupts, enough of it
corrupts absolutely.
While Montana judicial elections have been, for the most part, free of megamoney influences, our State is not immune from the Citizens United effect.
Montana’s Corrupt Practices Act was mostly declared unconstitutional by the
Supreme Court in the American Traditions Partnership case. The Ninth Circuit
declared and just recently reaffirmed as being unconstitutional Montana’s statutory
ban on partisan endorsements and expenditures—in what are supposed to be nonpartisan elections. New challenges are being raised--all with a purpose of gaining
control over the judiciary and destroying the bedrock principles of judicial fairness,
impartiality and independence.
And, finally, let me close with one further observation. There are those
jurists who call themselves “orginalists.” In pursuit of that ideology, they maintain
that the intent of the original framers of the federal Constitution controls the
court’s interpretation of that document. Originalists take the position that the
courts err and are “activist” in “expanding” existing constitutional rights and
“inventing” new ones that are not textually provided for in the Constitution or were
not within the contemplation of the original framers. Such Justices reject the idea
that the Constitution is an “evolving document.” As Justice Scalia recently stated
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in his remarks in August in Bozeman, Justices are no better suited to decide what
rights ought to exist than is “Joe Sixpack.” As the Justice noted: “Who decides
what [the Constitution] ought to mean? . . . . Five lawyers? What, are you crazy?
Who would ever set up a system like that?”
Well , I suggest that the framers themselves set up exactly such a system;
and I will not believe for one instant that the men who laboriously wrote, debated
and ultimately signed the Constitution, were so cabined in their vision as to expect
that their work would have a shelf life limited to their generation. I categorically
reject the notion that the framers were so obtuse as to believe that science and
technology would never advance; that government and institutions and business
interests would never change or overreach; that commerce and social mores would
forever remain stuck in the 1700s; and that the language of the framers and the
context in which they used it would limit the interpretation of their work, hundreds
of years into the future. I refuse to believe that the federal Constitution was written
by people afflicted with such intellectual myopia. Indeed, who would ever set up
a crazy system like that?
To be sure, there is no textual right in the Federal Constitution to an abortion
and there is no right to “commit sodomy,” as the Justice once put it. But on the
other side of the coin, at the time the Constitution was written the powers of
corporations were very limited; and corporations did not enjoy the fundament
rights enjoyed by the people themselves. Indeed, the original framers were highly
distrustful of the power of corporations. Rather, it was the Supreme Court that
over the years “extended” and “invented” various corporate constitutional rights—
including the right of corporate political speech.
I suspect that the framers would be appalled at Citizens United and its
predecessor cases. Given the framers attitudes, they would certainly never have
intended that mega businesses and special interests would share the fundamental
right of free speech that the founding fathers created for “Joe Sixpack.” And I
highly doubt that the framers would have foreseen, much less have intended, that
the Supreme Court would interpret the First Amendment so as to enable big
business and special interests to spend their way into control of the three branches
of government under the guise of corporate free speech.
So, it seems that “Originalists” are quite selective in their condemnations.
But like Han Christian Andersen’s emperor—the originalists have no clothes.
Indeed, as a judicial philosophy, originalism is grounded more in opportunistic
hypocrisy than in fact and substance.
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I have always believed that the framers wrote the Constitution to be a living
document— evolving to meet the problems of each new generation; a document to
be interpreted and enforced by courts and judges to protect people living in their
own time in history. The framers did not write a Constitution with an expiration
date—and over two centuries of evolving history has demonstrated that to be true.
The Constitution is as viable today as it was on the day on which it was signed.
And it is the courts and fair, impartial, and independent judges that have kept the
Constitution alive and well.
I continue to believe that the framers envisioned a robust system of checks
and balances and a co-equal, coordinate, third branch of government composed of
fair, impartial and independent judges whose job it was, and is, to interpret the
living Constitution in the context of the present—not the past. And, if that is the
system that the framers created, and they’re crazy for doing so, then thank God
they were all nuts.
In closing, for Montanans the battle lines are clear: we must fight for the
fundamental right to settle our legal differences in fair, impartial and independent
courts; we must condemn those who would destroy that ability; and we must reject
efforts to marginalize the judicial system--a co-equal, constitutional branch of
government. If those battles are lost to the forces of Citizens United, then we must
change the manner in which judges and justices are chosen under Montana’s
Constitution. This battle is an important one because Justice is, indeed, at risk.
We the People—each of us—are only the most recent generation of
Americans who have been called upon to defend the framers’ vision of a
Constitutional government Of the People, By the People, and For the People. That
responsibility is now ours. And, it is up to us to make sure that for as long as our
Country lives, there will be a Constitution Day to celebrate on September 17 th.
Thank you.
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