In the dozen or so years that attorney Bruce Spencer has lobbied for the State Bar of Montana, he can recall only a handful of proposed bills each state legislative session that affected the judiciary, usually requiring minimal effort for him to track.
But in 2021? Spencer has been such a frequent witness at legislative hearings, speaking out on numerous bills aimed at the state’s judiciary, that he’s attracted attention, admiration—and concern—from the Brennan Center for Justice, a nationwide nonpartisan judicial advocacy organization.
“A slew of really bad bills related to the courts were introduced, and I felt terrible for [Spencer],” says Patrick Berry, a counsel for the Brennan Center, who anxiously watched many of Spencer’s appearances. “He was really busy this session.”
Spencer agrees, saying that more bills than he’s ever seen in a single session were threatening judicial independence in Montana—driven in part by “a growing mistrust” among legislators toward the judiciary since former President Donald Trump’s verbal attacks following the 2020 election.
“Some people don’t understand that politics is not part of the decision-making process for a judge,” says Spencer, a former state bar president. “Or at least it shouldn’t be.”
Berry and others say Montana is not alone: Legislators and governors in several states have taken aim at their state judges and judicial systems, offering up and signing legislation addressing initiatives such as judicial impeachment, partisan elections, funding and other issues that many fear weaken the judiciary and imperil constitutional separation of powers.
And as in Montana, many bars are finding themselves increasingly on the defensive and speaking out on issues that they see as critical in defending the profession—in particular, the judges, lawyers and staff members who operate and work in the courts. Through increased advocacy, conversation, education, and outspoken action, many bars plan to continue their efforts to defend fair and impartial courts.