The situation may have been acceptable in the 19th century, when lawyers and law schools were scarce, critics say. But in the modern era, they say it raises serious questions about due process and the Sixth Amendment right to a fair trial. “What’s the point of having a legally-trained lawyer if the judge can’t understand what they’re saying?” said Stuart Banner, a University of California Los Angeles law professor.

What makes Montana’s situation even more troubling is that its usage of non-lawyer judges is not a vestige of an earlier era, but a recent attempt to save money. From at least 1895 until the 21st century, Montana guaranteed defendants tried before non-lawyer judges to a new trial before a lawyer-judge. Then, in 2003, state lawmakers tweaked the state’s rules to allow counties to exclude themselves from that right by designating their justice courts as courts of record. A state senator told his colleagues while introducing the bill would “provide cost savings to the people of Montana at every level.”

“It wasn’t like they were nostalgic for the good ol’ days or something,” Banner said.

Banner and his students drafted a petition for certiorari last July urging the U.S. Supreme Court to take up the issue in Davis v. Montana. The case revolved around two defendants, Kelly Davis and Shane Sherman, who were separately arrested and charged with driving under the influence. Each of them unsuccessfully moved for dismissal at trial, arguing the proceedings violated the Sixth and Fourteenth Amendments by denying them access to a trial by a lawyer-judge. Davis received a 30-day jail sentence; Sherman was sentenced to serve ten days behind bars. The Montana Supreme Court upheld the convictions last May and the U.S. Supreme Court declined to hear the case in January, leaving the underlying constitutional question unresolved.

Justices of the peace have been a cornerstone of American governance since the colonial era, when they formed the political backbone of towns and villages where state and federal officials rarely traveled. Local aristocrats often fulfilled the English version of the institution that arose from 14th century medieval reforms. But since early Americans lacked an aristocracy, the offices they inherited were instead held by respectable local leaders who were often non-lawyers. This adaptation drew the praise of Alexis de Tocqueville, a French political scientist who studied the early 19th-century United States.

“A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws,” he observed in 1831. “His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science.” In that role, justices of the peace often carried out a wide variety of duties, ranging from officiating weddings and assessing fines to issuing warrants and trying criminal cases.