I guess it should be self-evident that a marginal religious minority requires protection against the whims of the majority but a participant of the Mormon Stories Yahoo group reminded me of how frustratingly egocentric Deseret Mormons can be. Here is my reply to a Supreme Court basher:
Thank you for laying out a view about judicial review that is quite popular among Deseret Mormons. An exploration of the logical implications reveals that this view does not reflect the interests of most Mormons and has to be rejected on principle because it threatens the freedom of religious minorities such as ourselves.
When Deseret Mormons undermine judicial review to leverage their local majority status better, they do so at the expense of Mormons in the mission field. It was only in the year 2000 that a Mormon family had to seek the protection of the court against a school district that discriminated against Mormon children. No matter what the majority believes, teachers should not be authorized to bully our children by calling their religion a cult (Santa Fe Independent School District v. Doe). In such a situation, the courts are our only resort. You need to ask yourself if you really want to take that away from mission field Mormons.
When the courts frustrate the attempts of Deseret Mormons to discriminate Jewish choir girls, it serves the interest of every Mormon living in the mission field. When Deseret Mormons assault judicial review then they undermine the religious freedom of mission field Mormons. Therefore Deseret Mormon arguments against judicial review are short sighted, selfish, and reckless.
I am assuming that if you were a Mormon in Oklahoma or a Jew in Utah then you would not want to be dominated by the majority when it comes to religious freedom. If that’s the case, then the Golden Rule obligates you to defend judicial review.
If, on the other hand, you embrace your own discrimination in the name of majoritarianism, then, please, let your converts know why you are selling their interests out. Better yet, we might do less damage not pursuing conversions any longer if we intend to abandon those people to majorities anyways. Going into the world and asking people to join our cause implies an obligation of solidarity.
Do you have any idea how difficult people like you make our lives in place like Texas, Russia, or Western Europe?
I find it peculiar that you would refer to the Supreme Court Justices in terms of divination. I am not aware of any justice who claims revelation or mind reading powers. That’s the prerogative of LDS leaders. Justices explain their decisions in terms of legal texts and precedence.
It is curious that you would confuse the role of our religious leaders with that of the Supreme Court justices. That reveals a troubling misunderstanding about the workings of the court and the law.
You also appear to be confused about the checks that the United States Constitution places on the Supreme Court. If the majority of Americans disagrees with a ruling, more often than not, Congress and the President can overwrite case law by changing the wording of statutes with ordinary legislation. Even the Bill of Rights and other constitutional provisions that are affected by case law can be changed if there is a consensus that the Court is wrong. Finally, Congress can remove justices through the impeachment process.
The notion that the Supreme Court establishes some kind of oligarchy cannot be maintained by the facts. If you were to study the Court, you would be surprised how much it is constrained by majority sentiments. Unless the court enjoys the support of the president, forty one senators, our 218 members of the house, most verdicts cannot be sustained. The majoritarian hurdles to enforcement can be even higher.
In Anglo American common law tradition, judges have always played an essential role in developing the law. That’s why it is called case law. If you prefer the French approach and would like to replace common law with a code passed by the legislature that would be a reasonable position. But such a radical departure from tradition could not be deemed conservative.
Suspending the rule of law in favor of unchecked majoritarianism is not in the interest of the Mormon community. Most Mormons live in parts of the world where we are marginal minorities. Therefore we ought to protect judicial review like the apple of our eye. It is the only protection we enjoy against the tyranny of the majority.