In the wake of the unpopular Dobbs decision, there have been a lot of charges that the current SCOTUS is illegitimate. I understand and likewise feel the rancor toward the
New American Taliban erasure of common sense separation of church and state that have been sacrosanct since the country’s inception. But what does it mean exactly, to call the Court illegitimate, and is it true?
I propose we consider in this discussion three different facets of concern. These are concerns that I will then apply to church culture, so stick with it:
The shorthand usage of the term “illegitimate” seems to refer to two main complaints: 1) that the court’s decisions do not represent the values of the majority of Americans, and 2) that the members of the Supreme Court were selected in ways that were illegitimate, underhanded, crafty, etc. While both of these observations are indisputably accurate, it is nevertheless not accurate to call the Supreme Court “illegitimate” unless its edicts are not binding. In other words, a truly illegitimate court is one who makes rulings that are then ignored by the populace, not just by so-called law-breakers, but by the other branches of government and its enforcement agencies. That has long been a reason to question the legitimacy of the Supreme Court because they do not command armed forces (including the police) or any of the enforcement agencies that must enact the laws. Their edicts are only as binding as we say they are.
Of course, by that last definition, the Supreme Court is still legitimate even though it sucks. In fact, Kavanaugh’s explanation that they were just staying neutral by returning decision-making to the states, even though it was completely inconsistent with their ruling in striking down a concealed carry gun law in New York state with over a hundred years of precedent, points to a clever way to ensure that whatever SCOTUS decides, even if it is wildly unpopular, can be upheld by states who want to set (and enforce) draconian laws that erode basic human rights. For example, had this court existed during recostruction, the same argument could have easily been made to justify returning the question of slavery to the states. That’s literally the exact thing the Southern states wanted that led to the Civil War.
Tangent time , the idea of returning these matters to the states goes hand in hand theoretically puts the onus on voters, but surprise (!) SCOTUS is also enabling minoritarian, often religious, rule in state legislatures and even federal elections by reaching out to take cases that will make it easier to do partisan gerrymandering, suppress and throw out votes, and even for states to outright overlook the popular vote in their states and send electors that they prefer. In the case of Dobbs, women were told that we represent a larger percent of the population and should therefore be able to vote for legislatures that will protect women by codifying our rights into laws at the state level, which is supreme gaslighting. I am reminded of all the times when my brother used to use my own hand to smack me, then would ask why I was smacking myself. SCOTUS is a bully. The very fact that they have the power to do this is what makes them “legitimate.”
The court’s pointing back to state legislatures, shoring up their power, while hand-picking federal cases to overrule state level legislations (as in New York’s concealed carry law it struck down), brings up the question of jurisdiction or supremacy. Another case that opens this can of worms is the case in which the court reached out to a defunct environmental policy (this was not a case presented to them) to gut the EPA’s ability to regulate existing power plants. That action brings up jurisdiction (what some call supremacy). The gist is that we have historically seen the Supreme Court as the final arbiter, not a legislative body, but the one who settles disputes. They don’t create law. The dispute comes to them (in the form of an active lawsuit), and their decision is then final, until/unless a future case overturns that precedent.
This is also partly what we mean when we have previously fooled ourselves into seeing the Supreme Court as a non-partisan entity. Their job is interpreting the law, not creating laws (like the legislative branch does). They just call the tough shots.
However, in the upcoming case they have agreed to take and that at least 3 justices have expressed interest in, the potential ruling will eliminate state judiciaries from reviewing election-related actions taken by state legislatures, a radical shift. The judiciary was designed to be a check on executive and legislative powers. This would eliminate that check at the state level, allowing partisan legislatures to do whatever they want with no oversight. Big yikes, and welcome to fascism. Lawyers out there, feel free to head pat my concerns and soothe me that there’s nothing to see here.
This is the last category of concern, and in my opinion, the easiest point on which nearly all can agree. The approval ratings of the court (and politicians in general, natch) are at an all-time low point. It was only 36% in 2021, and now it’s 25%! That’s a pretty big drop in one year, and from an already low starting point. The biggest part of this erosion is related to the unpopular Dobbs decision that has even set many conservative Christians’ teeth on edge. Even many pro-lifers are angry about the fact that there is no preventing states from enacting bans that endanger women’s lives, or that the court has de facto weighed in on when life begins (which is definitely a religious question on which there is no consensus among different religions), that voters’ interests are not represented by many legislatures, and that a portion of pro-lifers are interested in using pregnancy and motherhood as a punishment for “loose” women, rather than preventing the prosecution of women.
Of course, that also means that there are 25% of our fellow Americans that do approve of this crapfest. I’m pretty sure I could pick them out of a lineup. Unfortunately, quite a few of them are in our pews, and I have no doubt that several of them sit in the big red chairs at General Conference.
Which brings us to discussing these concepts as they relate to current church culture.
Mormons have a strong tradition of following church leaders, but this was surprisingly and forcefully challenged in church culture during the pandemic. Was the unwillingness to support ward level Covid restrictions a “legitimacy” issue? It seems to me that if you view the church as not having legitimacy, by the definition I’ve used above, then you simply ignore its edicts, decline to accept callings, don’t participate in sustaining votes, don’t respond if summoned to a church court, and if you choose to leave the church, you don’t bother to resign (unless you want off the contact list, which is frankly the number one reason most people resign). Clearly church members, even those who felt that church leaders were deceived or speaking “as a man” rather than a “prophet” still felt that church leaders’ authority was legitimate in other ways.
That pushback could be viewed as a “supremacy” or jurisdicitional question instead. Those who pushed back might view it as a case of a church leader speaking on a non-religious (and therefore non-binding) topic, one in which their expertise might be discarded without jeopardizing the entire belief construct. This type of compartmentalization is common enough in our daily church experience. After all, it’s the exception that proves the rule. Oaks has previously preached that the Church can’t comment on every possible exception to every policy it makes. Individual adaptation applies.
More likely, that pushback was related to a confidence crisis. Those who disliked mask mandates or who believed in conspiracy theories that minimized the pandemic may have simply felt that any leader who didn’t share their skepticism was revealing errors in judgment. Confidence is always related to our own opinions and views, after all. Part of being human is having beliefs, and part of having beliefs is believing our beliefs are right. As illustrated in the Pixar movie Inside Out, we can’t tell the difference between our opinions and facts. They are like little blocks all jumbled up in the same box, but they feel the same to us.
Another factor in whether these types of disconnects can be ignored and compartmentalized or whether they will erode our trust in institutions is related to how important that belief is to us individually. For example, you may not care if the United States becomes like the EU in which each state feels like its own country with its own laws and rights because you like the way your state is run, and your own rights aren’t in question. Or you may feel that over-regulation is a bigger issue than reproductive rights. Our views don’t all carry the same weight, and different people who agree in principle may simply not care as much about a specific issue. If you are an LGBTQ ally, you may have very strong feelings about gay rights. Your views as an ally will, of course, be even stronger if you are LGBTQ.
In addition to the importance level of the (different) belief is our ability to hold our (different) beliefs privately or whether those beliefs will be exposed and subject to community or authority scrutiny. If you are pro-choice, and every week people at church are openly saying that pro-choice people are murderers, that might erode your interest in attending. BYU has recently increased its scrutiny of LGBTQ allyship, firing a long-term professor for her views regarding LGBTQ rights that she expressed in class. Additionally, in the early 80s, the Church decided to try to enforce anti-birth control views by asking married church members in temple recommend interviews if they used it. This was so unpopular that the Church discarded the intrusive question and changed the doctrine to state that it’s a prayerful decision for couples to make. However, the Church’s true feelings are revealed if you look at the healthcare policy for BYU employees which enumerates how many children the couple must have before they can obtain healthcare coverage for birth control.
Ultimately, we trust institutions, like SCOTUS or the church, until they demonstrate that they can’t be trusted, but what constitutes trust varies from person to person. These issues are brought to the fore whenever changes are too fast, are unpopular, feel intrusive, or are a large mismatch with one’s own values and rights. Underlying all of that is the question of what the organization will do when its power is (increasingly) unchecked such as when it is in charge. If you like and agree with its actions, then you approve and have confidence. If you don’t, big changes will erode your trust quickly. Once that trust is eroded, it’s up to the individual whether the institution is illegitimate (non-binding), operating outside its own juridiction, or has simply lost their confidence.
- How do you feel about this distinction between legitimacy, jurisdiction, and confidence? How does it relate to your current view of the church or SCOTUS? Why?
- Have you found your confidence to be increased or decreased in either SCOTUS or the church? What caused the shift?
- Do you think the membership’s approval rating of the church (if there were such a thing) has increased or decreased over time? What’s your evidence?
 Or “SCROTUS” as one podcaster now calls them.
 Which is less supreme than a taco with a tiny squirt of sour cream on it.
 Is it really a tangent when someone points out how our rights and ability to self-govern are being eroded right before our very eyes?
 Of course, he conveniently said this before making it compulsory to agree with all church policies, so yeah right.