A Brief to the Supreme Court Signed By Former Supreme Court Justices in Citizens United Sequal

May 21st, 2012

No, Justices Stevens, O’Connor, and Souter did not band together for a brief (though it wouldn’t surprise me much if they wanted to).

Several former Justices of the Montana Supreme Court have signed an amicus brief in the potential campaign finance blockbuster.

So who signed it?

Amici curiae are eight of the eleven living2 retired Justices of the Montana Supreme Court – Diane Barz, William E. Hunt, Sr., W. William Leaphart, R.C. McDonough, James M. Regnier, Terry N. Trieweler, Jean Turnage, and John Warner – and Justice at Stake. 2

The three other retired Justices are: Judge Charles E. Erdmann, who is currently sitting on the Military Court of Appeals; Justice John C. Sheehy, who is 93 years old; and former Chief Justice Karla M. Gray, who has not participated in any amicus curiae efforts since her retirement in 2008.

I wonder why the Chief wouldn’t join?

These retired Justices filed a brief as amici curiae before the Montana Supreme Court asking that court to uphold the law challenged in this case. They have all run nonpartisan statewide campaigns for election to the Montana Supreme Court, or have been appointed to the Montana Supreme Court and, with one exception, faced subsequent re-election. These amici are interested in the issue before the Court because the Citizens United paradigm authorizing corporate political speech implicates the fundamental due process rights of litigants, as well as the compelling state interest in preserving a fair and independent judiciary.

I guess elected judges are better candidates to submit such a brief. Also I suppose it isn’t that bad, in light of the fact that the majority of the Montana Supreme Court flagrantly ignored Citizens United in its opinion (whether they agree with it or not).

This reminds me of a frank comment made by retired-Federal District Court judge U.W. Clemon:

“I was increasingly conflicted by having to abide by Supreme Court decisions with which I profoundly disagreed,” Clemon said.