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Some states are laser-focused on supreme court elections after the Dobbs ruling

The Montana Supreme Court hears oral arguments in a case at the University of Montana's Jane and George Dennison Theatre in Missoula, Montana on April 15, 2022.
Freddy Monares
Montana Public Radio
The Montana Supreme Court hears oral arguments in a case at the University of Montana's Jane and George Dennison Theatre in Missoula, Montana on April 15, 2022.

Updated August 1, 2022 at 8:37 AM ET

HELENA, Mont. — The Dobbs decision leaves abortion policy up to states and state supreme courts are now a key player in deciding which laws will stand.

Seats on those courts will be up for election in more than 30 statesand parties are strategizing. Since Dobbs, state abortion law has already been put before state supreme courts in Utah, Michigan, Louisiana and Arizona, among others.

In Montana, there's a list of reasons Republicans are laser-focused on the judiciary, and at the top of that list is to ban abortion. In 1999, the state supreme court said Montana's constitutional right to privacy protects access to abortion and Republicans are looking for a way around that precedent, known as the Armstrong decision.

At the recent Montana GOP state convention, party chairman Don Kaltschmidt urged the crowd to support two candidates for state supreme court this election cycle — Justice Jim Rice and attorney James Brown.

"It's going to be historic for the sake of our conservative values," Kaltschmidt said.

Elections for the Montana Supreme Court are nonpartisan, but Rice and Brown are known conservatives.

In 2020, Montana Republicans won all statewide elected offices and gained 10 seats in the state legislature. The state supreme court is the party's last territory to conquer.

"We basically have two paths forward. We can either amend the Montana Constitution to ban abortion, or we can replace enough justices on the Montana Supreme Court to overturn the Armstrong decision," said Jeff Laszloffy — a well-known conservative lobbyist and president of the Montana Family Foundation — in an audio update sent to radio stations across the state.

Democrats' response

Montana Democrats are putting their weight behind incumbent state Justice Ingrid Gustafson, who faces Brown in the general election.

State Sen. Diane Sands, a Democrat who's advocated for abortion rights since the 1960s, recently visited the White House for a roundtable with Vice President Harris and talked about Republicans targeting the judiciary.

"This is not a problem the federal government can solve."

She highlighted Republican legislation passed last year that gave Montana's governor unilateral power to appoint judges to vacant positions in between elections. That was previously the job of an independent commission.

"In the long game, these forces in Montana are going after the Montana Constitution because they know it is the sole barrier to achieving their goal of making abortion illegal," Sands said.

Democrats in Montana want to protect the Armstrong ruling. The state is one of 10 across the country where state supreme courts have decided their state constitutions protect abortion. But those rulings aren't necessarily set in stone. In Iowa in 2018, for instance, the state supreme court overturned a precedent protecting abortion.

A steadily growing political focus

"In 1999, around seven states had judges who'd run in a million dollar race, but by 2016, 20 states had a judge who'd run in a million dollar race," says Douglas Keith, counsel at the Brennan Center for Justice Democracy Program. Those numbers are adjusted for inflation.

Keith says partisan, dark money groups have been getting involved in these races, and that the biggest spender in judicial elections today is the Republican State Leadership Committee, which has backed James Brown in Montana.

Copyright 2023 Montana Public Radio. To see more, visit Montana Public Radio.

Shaylee is a UM Journalism School student. She reports and helps produce Montana Evening News on MTPR.