In the wake of the unpopular Dobbs decision, there have been a lot of charges that the current SCOTUS[1] 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:
- Legitimacy
- Jurisdiction
- Confidence
Legitimacy
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[2] 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 [3], 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.”
Jurisdiction
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.
Confidence
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[4]. 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?
Discuss.
[1] Or “SCROTUS” as one podcaster now calls them.
[2] Which is less supreme than a taco with a tiny squirt of sour cream on it.
[3] 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?
[4] Of course, he conveniently said this before making it compulsory to agree with all church policies, so yeah right.
Wheat & Tares 
*yawn*
So what would have happened if New York had said it would ignore the court and continue to enforce it’s gun laws?
Lastlemming,
There is a legal term for your hypothetical. It is called “nullification” and there is quite a history behind it. A quick Google search should give you the details.
There are some of us (a silent minority) who believe that Roe vs. Wade was an illegitimate ruling because it inserted rights (the right to privacy and the right to an abortion) into the Constitution that did not exist, yet we are sad to see the rights of women turned backwards after 49 years. In other words, we think the 1973 ruling was incorrect constitutionally and yet we are against it being overturned. It might sound like a contradiction, but you can judge a ruling both on legal / constitutional grounds AND on the practical effects that ruling will have on lives.
Also, I’m usually a states rights guy because I believe the more local the government, the more legitimate and responsive. I love the 10th Amendment to the Constitution. But in this case (Dobbs) I simply don’t trust the states. You have fanatics on the left who want abortion on demand with no exceptions. And you have fanatics on the right who want to ban all abortion. Meanwhile, women (especially poor women who can’t travel across states) lose rights. And you even have folks in Texas and Oklahoma (among others) talking about going after women (and the cooperating doctor) who cross state lines for an abortion.
Abortion is very complex and it brings into question legitimacy, jurisdiction, and confidence in virtually every way imaginable. I’ve only touched the surface.
Some of us are just feeling so defeated after these past few weeks. I know I’ll rally, but it’s hard to get very passionate about systems that were put in place centuries ago when so many among us were not considered fully human. A lot of rebuilding is going to need to take place to put us in a better place where rights are not perpetually in jeopardy.
As far as gen z and church go, gen z’ers spent their formative years in a post 9/11 world and many came of age during black lives matter. They look inward rather than outward for their moral authority. Of course any institution can set and enforce its rules, but gen z’ers recognize fully that they can decide whether or not to participate. Many of them are not easily cajoled to do what feels wrong to them, and when they are LGBTQ or have friends who are (and that makes most of them), their confidence in church leaders wanes.
I like this framework of looking at the court, and it occurs to me that in a way legitimacy, jurisdiction, and confidence may be forms of capital that can be earned and spent, and that the current court seems hellbent on spending what capital they have to shift the nation to the right, to the extent they are running low in popularity.
This reminds me of something I read about the most foundational of all Supreme Court cases, Marbury v. Madison. Trying to be brief here, the Constitution said precious little about the Supreme Court and the judiciary in general, so Congress had passed legislation to define and organize the courts in more detail. In Marbury v Madison, Chief Justice John Marshall found himself in a position where he wanted to rule in favor of Marbury, but if the court had no way to enforce the ruling nor did it yet have the legitimacy that it holds today: many people believe that then-President Thomas Jefferson and Secretary of State James Madison would have simply ignored the court’s decision if it went against them.
So John Marshall wrote a very lengthy opinion with all the reasons that Madison/Jefferson should lose, that their actions were illegal and against the constitution. But then he turned around and said that the law giving the Supreme Court jurisdiction in the case was also unconstitutional, and he threw out the case on that technicality, giving Jefferson the win. The decision established for the first time that the Constitution was the supreme law of the land, and not merely a statement of philosophy like we now treat the Declaration of Independence. It was a huge power grab for SCOTUS, assuming for the first time the power to strike down laws they deem unconstitutional. And it was a brilliant strategic maneuver. Jefferson was forced to acknowledge the power of the court and judiciary in general in order to take the win.
So Jon Marshall seemed to find a way to trade capital. By giving up some jurisdiction and deciding a case for a side that they apparently brought didn’t prefer, Marshall and SCOTUS gained some confidence and legitimacy.
Contrast that with the current SCOTUS, and include the nomination process. When the senate breaks tradition to push a confirmation through, they spend some of the confidence in the Supreme Court in order to get the person they want on the court. When the court overrides long standing precedent to take away a previously held right, they undermine (or spend) their own legitimacy because their decisions no longer seem to be final. This is particularly true if their decision seems to lack rigor. They also undermine confidence in the court if the decision is unpopular.
Credit where credit is due, my understanding of Marbury v Madison comes largely from The Words We Live By: An Annotated Guide to the Constitution but because I memory-checked the names and dates on Wikipedia some specific wording from the Wikipedia article slipped into my comment just because the words were fresh in my head and I wasn’t being careful. Oops.
I generally don’t like the Supreme Court or courts period. They have a tendency to get lost in the weeds, hung up on technicalities, get bogged down by the mental gymnastics, frivolity, and disingenuousness of many skeevy attorneys and act powerless when we need them to be powerful (such as vis-a-vis Trump and his routine abuses of the constitution and his office) and can be too powerful when we need them to back off. Of course, the justice system is and always has been necessary, but it is my least favorite branch of government. I much prefer the executive. The greatest progress in the US has hardly ever been brought about by the Supreme Court. In fact, some of the greatest injustices have been enforced by it (i.e., Fugitive Slave Act, Plessy v. Ferguson). Major progress in the US has been brought about by the visionary leaders who inspire change and progress in the wider US culture through speeches, actions, and image. There is a reason why Americans view as their greatest heroes (at least in the political system) people who are presidents. Name me any Supreme Court justice who has near the standing of FDR, Lincoln, Washington, Teddy Roosevelt, and many others. And the presidents deemed to be the greatest by most Americans achieved progress through executive action and by expanding the influence of the federal government.
Progress has also mostly been achieved by reducing states’ rights, which was in essence a compromise to maintain the unity of the early states without them breaking off. The British American colonies were established with their own legislatures and traditions. The Constitution of 1789 brought basically 13 quasi-independent countries in loose union under the Articles of Confederation under a federal system. The Constitution of 1789 was barely ratified by all states as is and it took incredible campaigning and promotion on the part of Madison and Hamilton throughout the states to get people on board with it. And even then, its passage came with a compromise of 10 Amendments, one of them being the 10th Amendment, which was basically redundant, stating what was already implied in the Constitution, but an Amendment that has long emboldened mostly anti-progress factions of the country to defy federalist initiatives. States’ rights arguments have almost always served the interests of reactionaries. The anti-bellum South routinely appealed to states’ rights to justify slavery and its treatment of the slaves. Jim Crow states similarly pushed for states’ rights. And currently it is mostly right-wing lunatic fringe elements who beat the drum of states’ rights in order to enforce racist, sexism, homophobia, and gun culture.
In the end, on major political issues, it is quite apparent that Supreme Court justices are heavily guided by their ideological biases anyway, and essentially act as legislators. That being the case, it is time to expand the number of justices on the Supreme Court drastically, and cap appointments to something like six years. That I have to put up with clowns like Samuel Alito and Clarence Thomas for the rest of their lives is a burden too great to bear. That I have to refer to them as “justices” and “your honor” when they are neither just nor honorable is an even greater insult.
Old Man–I’m not really thinking of full nullification but rather something on the order of states passing marijuana laws that clearly contravene federal law and the federal government, even during the Trump administration, not really doing anything about it.
Verdict justia.com
Options for Biden’s Supreme Court Reform Commission
28 OCT 2020 MICHAEL C. DORF
https://verdict.justia.com/2020/10/28/options-for-bidens-supreme-court-reform-commission
First – the BYU employee handbook says how many kids they have before birth control coverage kicks in?!! I’m dumbfounded.
If I recall correctly, Andrew Jackson basically ignored some Supreme Court decisions by simply not enforcing them. I’m sure there are other examples, but I’d say we’re almost there now. New York almost immediately passed a law with almost the same effect as the gun law that was ruled unconstitutional days before.
I’ve admired John Roberts for trying to keep the Supreme Court above the political fray. He had that power when he was a swing vote (think Obamacare) but now even if he sides with the liberal 3 justices the other 5 conservative justices can ignore his vote. The fact that the head justice has little sway over his fellow conservative colleagues indicates a level of illegitimacy. The 5 conservative justices can *decide almost anything they please* with impunity. Lifelong appointments and zero likelihood of removal by congress.
Regarding the church: they’ve spent a high amount of their legitimacy currency on many topics over the years. Combine that with Gen Y and Z ambivalence and you have trouble for church leadership from a membership perspective (although perhaps not a financial perspective). One personal example – I hold a stake leadership calling and in an interview with the Stake President several months ago when asked if I consider RMN a prophet I said yes in the sense that he is the head of the church. I’m still in my calling even though 10 years ago I’d have been quickly released. I think in many areas they’re desperate for a middle aged white male with a pulse who will show up to meetings. “Illegitimate” describes it, but “irrelevant” also works.
I think the membership’s approval rating of leader ship is diminishing. Many conservative members are anti-maskers. Many conservative and very liberal members are anti-vaxxers. Many Mormons are uncomfortable with a $100+B rainy-day fund. Many would rather deal with poverty than temple construction. Many wonder why leadership fails to respond on important global issues. Many believe the BoM is inspired fiction (or just fiction). Many don’t believe the leadership’s policy on LBGTQ issues. Many believe that leadership is fiddling while Rome is burning.
Toad: I believe the requirement is FIVE kids.
Roger Hansen: I wonder how much of this is exacerbated by the pandemic. In our business, our customers are recurring, and we always warn our teams that when people skip one service, it sometimes teaches them how much they missed us, but at other times it teaches them they can do without us. I suspect the pandemic had a similar effect, the longer it wore on, and if I were more religious, I’d have to say that was god’s will. It wasn’t exactly in human control, at least not during the first year of pandemic when it was kind of a “go to church and possibly die or stay home and live” situation. There was a report on reddit (that the person took down, so I can’t grab the details) from someone claiming to be an insider in the COB saying that a lot of people have quit renewing temple recommends since the pandemic, creating a problem with staffing temples and even wards. I can’t say whether that’s true or not, but it wouldn’t shock me. Again, when you teach people they can do without something, sometimes you remind them they didn’t really miss that thing.
Certainly the pandemic has exasperated things. Encouraging home study was at first viewed as prophetic. Members soon learned, however, that they could learn more at home. Thus, negating the need to attend boring church meetings. By disallowing home sacrament, the leadership deemphasized the requirement for weekly partaking. Members came up with alternative methods of remembering Christ.
The Church’s wealth has discouraged tithing contributions. Continuing health and nutrition updates have brought into question the ban on coffee and tea.
Roger Hansen – “Members came up with alternative methods of remembering Christ.”
Covid gave members time and space to be alone with their thoughts. And a lot aren’t returning at all, or not with the same mindset they had in early 2020.
I view a primary purpose of undemocratic courts as protecting the rights of the minority – this is an important check on democracy, without which groups and individuals are at the mercy of the majority’s ability to do whatever it wants to them. Like commandeer their bodies to carry and bear children. If the court is unwilling to protect rights, particularly where the judges writing have their own religious opinions on the correct answer, that really hurts legitimacy and confidence.
I also think this threatens legitimacy because the reasoning is just so bad. If a right didn’t exist in the 1700’s but has existed for 50 years it’s not a right? We care so much about protecting life but the majority doesn’t even give lip service to the impact on women, or why we don’t do more to prevent miscarriage?
I appreciate Josh H’s comment here. I think this is a unique situation. I can’t really think of a more compelling interest than bodily autonomy. But I also recognize there are really tough questions about when life begins or when and under what circumstances a fetus’s rights trump a mother’s rights. These are questions without easy philosophical, moral, or scientific answers (and I am suspicious of anyone on either side who claims they are easy answers).
What is easy, though, is that a legislature is a blunt, uninformed, inappropriate group to try to answer these questions and dictate behaviors and outcomes. In my view the only people who can adequately balance those questions in any given situation is a woman and her medical providers. So the decision is best left to her.
There may be times that balance isn’t struck correctly in either direction – maybe a fetus is aborted that could have been saved, maybe a woman dies or suffers health problems when she should have chosen to terminate. But the fact that sometimes people will choose incorrectly is a necessary outcome of letting them choose in the first place, and letting them choose in the first place is critical to actual freedom.
Yes to all you said, Roger Hansen, thank you! Lifetime appointments are abominations, whether Supreme Court or closer to home wink wink: Also, “filthy-rich” and “Jesus” are, or should be, mutually exclusive. How is this not glaringly obvious?
Elisa, I would give your comment a dozen more upvotes if I could.
This post is so good I can’t even form the words to add to it. But luckily I don’t have to, as Elisa has done so beautifully.
From a religious standpoint: If Evil, or Satan, or opposition, is so critical to the plan, then how is removing our ability to choose bringing about the purpose of our existence?
From a logistical standpoint: Involving lawyers and politicians in the healthcare arena is just an awful idea. Exhibit A is our response to the COVID pandemic.
I’m so grateful to live in California. If anyone needs a place to stay to receive healthcare, my spare room is yours for the taking.
Btw @Angela, I think there’s a lot that suggests that TR renewals are way down post-Covid. Probably a combination of people realizing they didn’t miss the temple and enjoying some spiritual independence that’s incongruent with getting grilled by some dude about our personal lives.
I’ve got a lot of friends who didn’t renew and stopped wearing garments during Covid. And I also have friends in ward councils who were basically tasked with connecting with the (long list of) people in their wards without recommends (side note a family member was literally given a list of people’s recommend statuses, which she informed leadership she thought was not appropriate …). I wouldn’t be at all surprised if the number of recommend-holders has plummeted.