Personal Summary

Johnstone has served as the Helen and David Mason Professor of Law and an affiliated Professor of Public Administration at the University of Montana, Alexander Blewett III School of Law in Missoula since 2011. As a professor he taught federal and state constitutional law and legislation, as well as a federal judicial clinic. Johnstone also has served as trial and appellate counsel in federal and state courts, including the Ninth Circuit and the Supreme Court of the United States, most recently with Johnstone PLLC. Previously, he served the Montana Department of Justice as state solicitor from 2008 to 2011 and assistant attorney general from 2004 to 2008. Johnstone entered practice as an associate at Cravath, Swaine & Moore in New York from 2000 to 2003. Born to Montanans in Minneapolis, Minnesota, Johnstone received his Bachelor of Arts from Yale University in 1995 and his Juris Doctor, with honors, from the University of Chicago Law School in 1999. Following law school, he clerked for Ninth Circuit Judge Sidney R. Thomas in Billings, Montana from 1999 to 2000. 

Johnstone has served on several judicial-related committees, including the Montana Supreme Court Advisory Commission on Rules of Civil and Appellate Procedure, the U.S. District Court of Montana’s Judicial Institute Coordinating Committee, and its Merit Selection Committee for Billings Magistrate Judge in 2016. He served as an appellate lawyer representative for the U.S. Court of Appeals for the Ninth Circuit from 2009 to 2011. Johnstone has been a member of the American Law Institute since 2009. The Ninth Circuit encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington state, the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands. It includes the Ninth Circuit Court of Appeals and the federal trial and bankruptcy courts in the 15 judicial districts within the circuit. The U.S. Court of Appeals for the Ninth Circuit had 8,268 new filings in calendar year 2022. All 29 authorized judgeships are currently filled. Appointed under Article III of the U.S. Constitution, federal circuit judges are nominated by the president, confirmed by the Senate and serve lifetime appointments upon good behavior.  

Education

J.D. with Honors, University of Chicago (1999)
B.A., Yale College (1995)

Courses Taught

• Constitutional Law, LAW 558 (Every Fall, 4 Credits)
• Advanced Constitutional Law, LAW 604 (Odd Spring, 3 Credits)
• Montana Constitutional Law, LAW 618 (Every Spring, 3 Credits)
• Legislation: Law & Politics, LAW 652 (Every Fall, 3 Credits)
• Philosophy of Law, LAW 664 (Even Spring, 3 Credits)
• Supreme Court Seminar, LAW 667 (Occasional Winter, 1 Credit)

Publications

The Montana Constitution in the State Constitutional Tradition (Carolina Academic Press, 2022)

Minibriefs and Minimoots in Seminars, in Tammy Pettinato Oltz, ed., Lawyering Skills in the Doctrinal Classroom (Carolina Academic Press, 2020)

A State Is a ‘They,’ Not an ‘It’: Intrastate Conflicts in Multistate Challenges to the Affordable Care Act, 2019 B.Y.U L. Rev. 1471 (2020)

Hearing the States, 44 Pepp. L. Rev. 575 (2018)

The Federalist Safeguards of Politics, 39 Harv. J. L. & Pub. Pol. 415 (2016)

A Past and Future of Judicial Elections: The Case of Montana, 16 J. App. Pro. & Practice 47 (2015)

Foreword: The Future of Federalism, From the Bottom Up, 76 Mont. L. Rev. (2015)

The Hercules of Helena: Justice James C. Nelson and the Jurisprudence of Principle, 75 Mont. L. Rev. 199 (2014)

Outside Influence, 13 Election L. J. 117 (2014)

The System of Campaign Finance Disclosure, 99 Iowa L. Rev. Bull. 143 (2014)

Recalibrating Campaign Finance Law, 32 Yale L. & Pol'y Rev. 217 (2013)

Commandeering Information (and Informing the Commandeered), 161 U. Pa. L. Rev. 205 (2013)

Foreword: The State of the Republican Form of Government in Montana, 74 Mont. L. Rev. 5 (2013)

Testimony, "The Citizens United Court and the Continuing Importance of the Voting Rights Act," U.S. Senate Judicary Committee (Sept. 12, 2012)

Council of Appellate Lawyers, The Appellate Practice Compendium (Montana chapter) 
(Dana C. Livingston, ed., American Bar Association 2012)

A Madisonian Case for Disclosure, 19 Geo. Mason L. Rev. 413 (2012)

The Constitutional Initiative in Montana, 71 U. Mont. L. Rev. 325 (2010)

Captive Regulators, Captive Shippers: The Legacy of McCarty Farms, 70 U. Mont. L. Rev. 239 (2009)

Peremptory Pragmatism: Religion and the Administration of the Batson Rule, 1998 U. Chi. Legal F. 441

Scholarly Papers: http://ssrn.com/author=546899

Affiliations

Elected Member, American Law Institute (Advisor, Principles of Government Ethics; Member Consultative Group, Principles of Election Law)
Senior Counsel, National State Attorneys General Program, Columbia Law School
Member, American Bar Association
Member, American Bar Foundation
Member, State bars of Montana and New York; Federal bars of the U.S. Supreme Court, Ninth Circuit, District of Montana, and Southern, Eastern, and Northern Districts of New York

Professional Experience

Judge, Ninth Circuit Court of Appeals (2023-   )
Solicitor, State of Montana (2008-2011)
Assistant Attorney General, State of Montana (2004-2008)
Associate, Cravath, Swaine & Moore (2000-2003)
Law Clerk, Hon. Sidney R. Thomas, United States Court of Appeals for the Ninth Circuit (1999-2000)

DISCLOSURE: Professor Johnstone is counsel in the following cases: 
State v. Talen, et al. (pending, Mont. 1st Dist. Ct. & D. Mont.)

Honors / Awards

Montana Faculty Service Award, 2019
Law School Merit Award, 2019, 2017 & 2016 
Garlington, Lohn & Robinson Teaching Award, 2021
Howard W. and Jane S. Heman Memorial Law Faculty Award for Excellence in Teaching, 2018
Toelle-Bekken Family Memorial Fund Award, 2018
Boone Law Faculty Scholarship Award, 2022, 2016 & 2013
Native American Law Student Association Teaching Award, 2016
Robert & Pauline Poore Law Faculty Service Award, 2015
Curriculum & Instruction Partnership Award, 2015
Margery Hunter Brown Award for Teaching & Service, 2012