McGrath, Sandefur Won’t Seek Re-election
Neither Montana Supreme Court Chief Justice Mike Mc-Grath nor Justice Dirk Sandefur will run for re-election in 2024, they independently told Montana Free Press last week.
That means both of next year’s races for the state Supreme Court will be open contests at a time of heightened political visibility for the judiciary and unprecedented price tags for judicial races. Rumors that both justices might not seek re-election have swirled among the state’s political class for weeks, if not longer. McGrath is in his second eight-year term; Sandefur is in his first. Both of their terms conclude at the end of 2024.
“I’ll be 77 at the end of this term, and I don’t feel like I can commit to another what would be nine and a half years at this point,” McGrath told MTFP. “It’s time to move on.”
McGrath was elected to the state’s high court in 2008 and retained by voters in 2016. The chief justice is the administrative head of the court and its primary representative when interfacing with other branches of government. In Montana, it’s an elected position — not one appointed by the other justices — so whoever replaces McGrath will also assume the chief justice mantle.
Sandefur was elected in 2016 to replace the retiring Justice Patricia O’Brien Cotter.
“Over the past 21 years as a state district judge and supreme court justice, including three successful district court elections and a successful statewide supreme court election, I have given my very best to serve with distinction, fulfill my oaths to protect and defend our state and federal constitutions, provide fair and equal justice to all litigants of every stripe, and uphold the rule of law even when outcomes in particular cases are controversial or not politically popular,” Sandefur said in a written statement. “Going forward, my current plan is to continue to serve in the civil and criminal justice system in an unelected, non-advocate role commensurate with the substantial experience and expertise that I have acquired as a result of my extensive judicial career.”
Races for Montana Supreme Court have become costly, high-profile and sometimes brutally political affairs, despite their nominal nonpartisanship.
In 2022, Public Service Commission president James Brown challenged incumbent Justice Ingrid Gustafson, launching what became the most expensive Montana Supreme Court race in history. The Montana GOP and prominent Republican officials rallied behind Brown, a former attorney for the party and for other conservative causes, including Western Tradition Partnership, a “dark-money” group that challenged Montana’s campaign finance laws in the aftermath of the Citizens United decision. Democratic groups responded with support for Gustafson, as did reproductive rights advocates following the U.S. Supreme Court’s Dobbs decision. Access to abortion in Montana is protected under the state Constitution thanks to the Montana Supreme Court’s unanimous 1999 decision in Armstrong v. State. Gustafson ultimately kept her seat, defeating Brown by about 8 points.
That race was in some ways presaged by Sandefur’s own campaign against now-Lt. Gov. Kristen Juras for Supreme Court in 2016. Democrats and much of the state’s legal establishment backed Sandefur, while Republicans and other conservative causes backed Juras. The stakes of that election — at least rhetorically — included samesex marriage, Montana’s stream access law and more. Sandefur defeated Juras by almost 13 points.
The Brown-Gustafson election was also backlit by a major inter-branch conflict between the judiciary and the Republican-dominated Legislature in 2021. The fight concerned the lobbying practices of the Montana Judges Association, the extent of legislative subpoena powers and, more broadly, the long-standing frustrations of conservatives who have seen a number of their policies caught up in court.
McGrath, a key player in the separation-of-powers saga, repeatedly asserted the court’s independence and defended judges’ ability to lobby on legislation they believe will affect court administration. McGrath recused himself from litigation challenging Senate Bill 140, a 2021 law that eliminated the Judicial Nomination Commission in favor of direct gubernatorial appointments to vacant bench seats, because he had urged Gov. Greg Gianforte not to sign the bill.
Sandefur also waded into the fray on occasion, writing in a concurring opinion to a ruling against legislative subpoenas for court records that Republican lawmakers manufactured a “recklessly ginned up ‘crisis’” in order to inject partisanship into the judiciary and undermine its role as a check on the other branches of government.
In an interview last week, McGrath said he is still concerned with preserving the independence of the judicial branch, though he hesitated to point fingers at any specific entity attempting to diminish that independence.
“I think there are certainly reasons for concern that the courts continue to be independent and make decisions based on the law and the facts of each individual case — and have the ability to make decisions based on the law and the facts of each individual case,” he said. “That is certainly more of a struggle today than it has been historically, certainly in my 50 years in the law business.”
McGrath, originally from Butte, served as Lewis and Clark County attorney for several terms before winning a race for Montana attorney general as a Democrat in 2000. After two terms, he ran for chief justice, ultimately defeating Ron Waterman for the seat vacated by the retiring Justice Karla Gray.
Sandefur, originally from Great Falls, had been a police officer in Havre, a public defender, a prosecutor for Cascade County and a district court judge before winning election to the Supreme Court.
“Whether as a police officer, public defender, deputy county attorney, state district judge, or supreme court justice, I have dedicated almost my entire career to public service in government and the civil and criminal justice system,” he said in his statement.
The justices’ decisions eliminate a key variable from the upcoming Supreme Court elections: incumbency advantage, which can be especially important in comparatively low-name-recognition judicial contests. Without an incumbent in either seat, the only guarantee is that there will be two new faces on the bench come 2025.
No candidates have yet filed for Sandefur’s seat. Former Montana district federal magistrate judge Jeremiah Lynch has registered to run for chief justice.