capitol rotunda dome
The dome above the rotunda in the Montana State Capitol, photographed Thursday, Jan. 26, 2023. Credit: Samuel Wilson / Bozeman Daily Chronicle

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.

Former Montana Supreme Court Justice Jim Nelson kicked a hornet’s nest last week when he referred to Republican efforts to reshape the judiciary as a “jihad,” a “fight to the death” and “a war perpetrated by the supermajority Freedom Caucus, the Legislature, the governor, and the attorney general.” (Note: The Montana Freedom Caucus does not hold a majority in the Legislature).

Nelson, who was appointed to the high court by Republican Gov. Marc Racicot in 1993 and retired in 2012, made the remarks at a rally “to defend Montana’s Constitution” hosted in the Capitol rotunda March 15 by an assortment of nonprofit advocacy groups.


In subsequent press releases last week, Republicans panned Nelson’s remarks and accused him of appearing to endorse political violence.

“We are alarmed and disturbed that a former Montana Supreme Court justice would engage in such violent rhetoric, including naming specific elected officials in his comments about a ‘fight to the death,’” GOP legislative leadership said in a statement. “We condemn Justice Nelson’s violent rhetoric and call on all Montanans to keep violence out of our politics.”

Sen. Kenneth Bogner, R-Miles City, took particular issue with Nelson’s “jihad” metaphor. 

“I served two tours in Iraq fighting in a war, including against jihadists. Suggesting that political differences in Big Sky Country are in any way similar to war or jihad is as wrong as it is concerning,” Bogner, a Marine Corps veteran, said.

Republicans’ two-thirds legislative supermajority means they can place constitutional amendments on the ballot for consideration by the voters in the 2024 election without needing the support of Democratic lawmakers. And the Constitution — or the courts’ interpretation of the Constitution — has on certain issues repeatedly stymied Republican policy goals, especially in regards to abortion. Nelson was the primary author of the Montana Supreme Court’s 1999 Armstrong decision, which held that the state Constitution’s broad privacy provisions protect access to abortion.  

The GOP has acknowledged that dynamic since the beginning of the session. But they haven’t done much about it: Republicans introduced only seven amendment proposals in the first half of the 2023 session, with one already tabled in committee. But dozens more are in various stages of drafting, and lawmakers have signaled that such bills could occupy more space in committee rooms from now on.

Rep. Bill Mercer, R-Billings, has identified at least one proposed amendment providing for gubernatorial appointments of Montana Supreme Court justices — the latest in a slate of GOP-backed judiciary bills this session. Any amendment would need to not only gather 100 votes across the Legislature, but also receive approval from voters.

Other amendment ideas in the draft stage include enshrining a constitutional right to hunt and trap, a right to carry a concealed firearm, a “personhood” amendment that would extend rights to fetuses at any stage of development, a requirement that the Legislature approve new redistricting plans and more. 

“I find it a little unusual that you hear so much about the threats to democracy and all of a sudden you have the chance of the people to engage in democracy and have a voice in what their Constitution and what their government looks like, and all of a sudden you have all these people like Racicot and others that say it’s bad for the people to decide what their government looks like,” Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said in a press conference last week, referring to Racicot’s outspoken criticism of his party’s actions. 

Nelson’s speech focused more generally on legislative efforts to modify — and make more partisan — the state’s court system, which he branded a “power grab” designed to make the Legislature an “all-powerful branch” of state government. That’s a theme continued from the 2021 session, when lawmakers gave Republican Gov. Greg Gianforte unilateral power to fill judicial vacancies and then engaged in a protracted inter-branch conflict with the court system about judicial transparency and legislative subpoena powers. 

“It is a war grounded in the GOP’s determination to impose a white Christian Nationalist government at the federal and state levels. And that makes this war one grounded in religious ideology — white Christian Nationalism — which is the very definition of a jihad. So I stand by my remarks.”

Former Montana supreme court justice jim nelson

“So, my friends, the battle has been joined,” Nelson said in his speech. “Each of us must do our part: we must call out legislators, we must write letters to the editor, we must assemble and rally, we must not forget what is a stake — nothing less than our constitutional tripartite government. Three co-equal branches, with separation of powers, checks and balances and the scrupulous adherence to the rule of law.”

Reached by email Friday, the former justice said he has “absolutely no second thoughts on the way I phrased my remarks.” He said the GOP is waging war against the judiciary, the LGBTQ+ community, the poor, people who dress in drag, citizens seeking abortions and others. 

“It is a war grounded in the GOP’s determination to impose a white Christian Nationalist government at the federal and state levels,” he wrote. “And that makes this war one grounded in religious ideology — white Christian Nationalism — which is the very definition of a jihad. So I stand by my remarks.”

He added that after he left the rally, he saw people peaceably gathering their things and leaving.

“What I did not see was these citizens gathering up their knives, and guns, and tear gas and baseball bats, and ransacking the Capitol,” he wrote. 

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Arren Kimbel-Sannit

Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.