Adequate and Independent: Thoughts on Montana Constitutional Law

Adequate-and-Independent is (in addition to, perhaps, your favorite housecat) the doctrine under which state-constitution based legal ruling by state courts are protected from interference by the United States Supreme Court. These rulings, while often under appreciated in the public consciousness, frequently address the most pressing issues of the day.

The United States is governed not only by the U.S. Constitution as interpreted by the U.S. Supreme Court, but also by 50 state constitutions interpreted by 50 state high courts. These courts perch atop a vast frontier of undeveloped state constitutional landscapes affording broad swaths of discretion to make new law, potentially divergent from SCOTUS rulings. (Legal abortion access, for example, is guaranteed in Montana by the state Supreme Court’s application of its own state constitution, notwithstanding SCOTUS’s Dobbs decision withdrawing the right at the federal level.) And some state constitutions, like Montana’s, have rich constitutional convention records, providing ample material for originalist-based interpretation.

Despite their power, state courts often operate in relative obscurity, receiving little attention from either the public or academics. Ironically, these oft-ignored state courts may be the only courts that have any potential to actually be influenced—for better or for worse—by the public. Unlike their federal counterparts, the majority of state jurists (including in Montana) are subject to regular popular elections. These elections might raise concerns of crass political campaigning unfairly sullying the judiciary’s reputation, or undermine criminal defendants’ rights in the run-up to an election. But they also present an opportunity to strive for objectively better, more efficient, consistent, and well-reasoned state judiciaries.

Obscurity is no guarantee of safety. As I wrote in a law review article about the 2021 Montana legislative-judicial standoff and resulting near-constitutional crisis, the informational vacuum surrounding state courts might be a vulnerability for legitimate judicial independence at the state level. And a certain level of critical analysis of otherwise-ignored state court rulings may help to ensure judges—who, like professionals in all fields, come in a range of quality—remain motivated to provide their best efforts.

With recent political trends leading to a renaissance in federalism principles recalling the(se) United States as a plural, rather than purely singular, entity, this publication represents an initial effort to help catalyze a more serious (and not-so-serious) analysis of state court jurisprudence. My goal is to provide meaningful legal analysis of the constitutional dimension of pressing issues in Montana (and, occasionally, elsewhere), such as the environment, immigration enforcement, housing, civil rights, and criminal procedure. I hope to give a rigorous level of analysis in an easily digestible manner useful to both the public, journalists, and legal professionals. Thanks for reading, and I hope you enjoy.