Nelson is a retired attorney and served as an associate justice of the Montana Supreme Court from 1993 through 2012.
Most of us have heard the story about boiling the frog. Drop a frog in boiling water, and he’ll jump right out. But drop the frog in cool water and then increase the temperature of the water slowly, and the frog won’t notice. Soon it will be cooked.
That’s exactly what is happening to state courts around the country. The Brennan Center for Justice comprehensively reports that as state courts have taken on greater importance over many polarizing issues — involving abortion, voting, gerrymandering, judicial selection and independence, judicial decision-making, judicial review, Medicaid coverage of women’s health, climate change, and limiting enforcement of court rulings — right-wing politicians and legislatures have redoubled their efforts to assert political power over state judicial branches and ensure judges will not be an obstacle to their partisan policy goals.
These attacks on state judicial branches have been incremental — a law here, a law there, chipping away at the third branch of government, with the ultimate goal of bringing judges and the courts under the control and heavy thumbs of the legislative and executive branches.
The political branches refuse to recognize that under our tripartite, constitutional system, judicial branches are co-equal and coordinate branches serving as checks and balances against the other two.
Montana, where I served on the Supreme Court, has not escaped these sorts of attacks. Indeed, starting with the 2021 supermajority Legislature, and continuing in the 2023 session, the political branches launched a veritable jihad against this state’s judicial branch and its judiciary. For the most part, these attacks have not succeeded. But the war goes on, nonetheless.
One of the latest attempts by the political branch camels to get their noses under the judicial tent involves the 2023 Legislature’s formation of a Senate Select Committee on Judicial Oversight and Reform. It is a quintessential example of the arrogance and hubris of the extremists in this Legislature to believe that they have either the duty or the power to oversee, much less reform, the operations or decisions of a coordinate, co-equal branch of state government.
Quite simply, the judicial branch does not work for the Legislature or the executive branch. Rather, the judicial branch serves as a co-equal constitutional check and balance on the two political branches. This most basic principle of constitutional law (not to mention, middle school Civics 101) is enshrined in Article III, Section 1 of Montana’s Constitution, which provides:
"Separation of powers. The power of the government of this state is divided into three distinct branches—legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted." (Italics added)
The committee’s opening shot across the bow of the judicial branch was its letter demanding that the Montana Supreme Court answer a number of questions involving the court’ s procedures in calling in substitute judges in some cases, in retired justices filing an amicus curiae brief and in other matters. And this follows on the heels of the 2021 Legislature’s attempts to investigate the courts’ emails and its upending the 50-year-old system for appointing judges on merit, in favor of a partisan system under the control of the governor.
These are examples only. The point is that every attempt to “oversee and reform” turns up the temperature of the water in which the political branches have placed the judicial branch.
Unless the voters stop the political branches, the judicial branch will soon be boiled. It will be cooked!
image of U.S. President Donald Trump is displayed on a digital billboard in Times Square in New York on April 8, 2026.
Trump is stuck between two realities. Neither serves the American people
Normally, I worry that events may overtake a column. But not so with the Iran war.
I don’t worry about running afoul of a headline or Truth Social post from the president because what is said about the situation is no longer very relevant to the reality.
On April 8, Nick Catoggio, my Dispatch colleague, dubbed an earlier stoppage with Iran “Schrödinger’s ceasefire.” This was a reference to the famous thought experiment by the physicist Erwin Schrödinger, who was trying to explain the weirdness of “superpositionality” in quantum physics. A cat in a box is both dead and alive at the same time until you open the box. Schrödinger meant to illustrate the absurdity of the idea that particles aren’t any one thing, but a “cloud of probabilities.”
The Trump administration is stuck in a word cloud of probabilities of his own making. The war is over. The war is on. The war isn’t a war. We have a deal, but we don’t have a deal, but we’re about to have a deal. We destroyed Iran’s military. No, we left it intact. We want regime change. No we don’t. We already accomplished it. We “obliterated” Iran’s nuclear program a year ago. We had to go to war in February to prevent nuclear war. The Strait of Hormuz is open, closed, or something in-between. No deal without “unconditional surrender.” Let’s make a deal!
This everything-all-at-once vibe can be disorienting, particularly since most Americans didn’t have a war with Iran on their bingo cards until the shooting had already started. President Trump didn’t prepare the country or consult with Congress beforehand because he thought it would all be a smashing success in a matter of weeks.
The miscalculation that started it all: killing Iran’s Supreme Leader, Ayatollah Ali Khamenei, and much of Iran’s senior leadership, on the first day of the war. To “the great proud people of Iran, I say tonight that the hour of your freedom is at hand,” Trump announced on Feb. 28. “When we are finished, take over your government. It will be yours to take. This will be probably your only chance for generations.”
I support regime change in Iran and shed no tears for Khamenei or his goons. But when you start a war by killing the regime’s top leaders, it’s not unreasonable for the remaining ones to conclude that you really intend regime change.
Khamenei was a murderous fanatic, but he was a fairly cautious one. He liked to threaten closing the Strait of Hormuz or attacking our regional allies, but he was reluctant to actually do it, fearing it would invite a regime change war. The mullahs and IRGC goons believed, not unreasonably, that if they lost their grip on power, they’d be lynched by the Iranian people they’ve brutalized for decades.
By starting with a regime change war, Trump removed any reason for the regime not to go for broke. When you have nothing to lose — particularly when you are a millenarian religious fanatic — a Persian Alamo strategy makes a lot of sense.
So Iran closed the Strait of Hormuz and attacked its neighbors.
But it turns out this wasn’t the Alamo. In the contest of wills, Trump blinked. The Iranian regime’s tolerance for punishment proved — so far — to be greater than Trump’s and that of our gulf allies. Militarily we could finish the job, but that would require ground troops and much greater economic turmoil. In a conflict Trump launched unilaterally without the prior support of Congress, NATO or the American people, Trump doesn’t have the political capital for that.
But that’s only half the problem. Trump wants the war over, but he doesn’t want to pay — militarily, economically, politically — what that would cost. So he wants to make a deal that ends it. But there is no deal available that wouldn’t come at an equally undesirable cost. Any deal that looks like what President Obama struck with the Iranians would be too embarrassing to bear. But the Iranians are convinced that they can get just such a deal, and they’re willing to drag things out as long as it takes.
The result: Trump’s in a box of his own making. He thinks he can talk his way out by simply asserting a reality that doesn’t exist. When the financial markets get nervous, he announces a breakthrough that is, at best, a possibility. When the Iranians agree to a deal that looks similar to one Obama might negotiate, Trump goes back to his threats.
It can’t go on forever. But I’m sure it’ll last until long after this column is forgotten.
Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.