Hawaii's Supreme Court Declares War On SCOTUS

thefederalist.com

In June, Justice Samuel Alito, writing for the U.S. Supreme Court, reversed a decision by the Hawaii Supreme Court, explaining that the Constitution “cannot give way to ‘the spirit of Aloha.’” That was a repudiation of the Hawaii Supreme Court’s earlier ruling that in Hawaii, “[t]he spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons.” The Hawaii Supreme Court relied on the “Aloha Spirit” to end-run around the Second Amendment. The U.S. Supreme Court rejected that. And now, the Hawaii Supreme Court has struck back with an opinion in Granillo v. State that attempts to repudiate the current Supreme Court.

There is a version of Granillo v. State that would have made for an unremarkable opinion. On July 15, the Hawaii Supreme Court granted a new trial to a man convicted in 1990 on the strength of FBI hair-and-fiber testimony that modern science has since discredited. Looking at that record and concluding a conviction built on now-discredited testimony cannot stand is normal. Reasonable people can debate the doctrinal test the court adopted, and they often do.

But a doctrinal opinion is not the opinion the Hawaii justices wrote. Around 73 pages into the 91-page opinion, having resolved the case before them, the majority sets the record aside and launches into a deep criticism of the U.S. Supreme Court. When the opinion’s subject changes to the U.S. Supreme Court, the register changes with it — from judicial reasoning to political invective. As a frequent state supreme court practitioner, I have never seen an opinion that so aggressively targets the Supreme Court. Highlighting that problem is vital because other courts are watching and may take this as permission to do the same.

The majority writes that “we take no guidance on the meaning of due process from a court that gutted due process protections in Dobbs” — saying that this criminal procedure case will not rely on U.S. Supreme Court precedent because of a decision about abortion. And unfortunately, the opinion gets even further afield in its attack on binding precedents from there.

Accusations of Racism

The Hawaii Supreme Court declares that “the Court that now defines federal due process does not honor the work of 1954. It revives the work of 1857. The work of 1896” — invoking the discredited cases Dred Scott and Plessy v. Ferguson to imply the Supreme Court is not only racist, it is as racist as the worst jurists before the Civil War. The Hawaii Supreme Court thus accuses our nation’s highest court of continuing the constitutional project of racist slaveholders.

Then, the Hawaii court goes from implicit accusations of racism to explicit. It accuses the Roberts Court as “seeing only white.” Rejecting colorblindness, the Hawaii Supreme Court says that the Supreme Court’s approach “is not blindness. . . . [It] is white sight, by design.” While literally nonsensical, the opinion is trying to accuse the Supreme Court of favoring white citizens over black ones.

Activism Not Reasoning

Adopting the pose of an activist on X or a spoken-word poet, the Hawaii Supreme Court opinion contains lots of short sentences on misconstrued precedents it disagrees with. “Draining due process. Rolling back voting rights. Flooding elections with money . . . Crowning a president” — and dismisses Supreme Court jurisprudence as “white noise.” White noise both for its racial connotation and because it is in the background and should be ignored. One need not agree with every decision the Supreme Court has issued to recognize that this sounds more like an activist’s press release than a judicial opinion.

Of course, the Supreme Court is not beyond criticism. But judicial criticism should be respectful, reasoned, specific, and tethered to law. Nothing in those eight pages meets that standard. Instead, the opinion almost reads like an AI-generated grab bag of cases that liberal jurists dislike and accuses the Supreme Court of nefarious intent in issuing them. A greatest hits of the last 20 years of centrist and center-right Supreme Court jurisprudence.

Take Dobbs, the majority’s lead exhibit. Whatever one thinks of the result, the decision rested on a real and long-running argument that the Constitution’s text says nothing about abortion and that the question therefore belongs to the people and their elected representatives. That is a position held by serious jurists across the ideological spectrum, including many who favor abortion rights as a matter of policy.

To describe it as “gutting” due process is abandoning debate and slipping into ad hominem. The same is true of the majority’s short swipes at Shelby County (removing outdated race requirements for election law changes), Bruen (supporting Second Amendment rights), Rucho (removing courts from politicized gerrymandering cases), Citizens United (protecting First Amendment rights), and Loper Bright (ensuring democratic accountability for bureaucratic law changes). Each represents a contested but recognizably legal judgment about text, structure, and the proper role of courts.

Politicized Judging

The Hawaii justices’ opinion is unfortunately more ironic than a reasoned critique. Their central complaint is that the Supreme Court has become political — that it decides cases to “serve its own ends” and advance a “partisan project.” Yet its eight-page aside about the Supreme Court shows its own willingness to editorialize from the bench about matters not before it. A concurring justice urged restraint, noting that the court could resolve the claim without reaching so far. The majority pressed on anyway. A court worried about the appearance of politicized judging would not have reached so far with so little justification. Even leading legal experts like Sen. Eric Schmitt, former Missouri attorney general, have called this opinion out as “judicial insurrection.”

None of that is to deny that state constitutions can, and sometimes do, provide protections the federal Constitution does not. Hawaii is free to read Article I, Section 5 of its constitution to establish broader protections than the federal due process clause. Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit wrote an entire book exploring that phenomenon across the country.

But Supreme Court justices decide the hardest questions in American law, often under withering pressure, and they do it in signed opinions that explain their reasoning and invite disagreement. The better answer to a decision one dislikes has always been the same: a sharper argument, a closer reading, a more faithful account of text and history. Hawaii’s justices could have done that. Instead, they offered an insult. Troublingly, this opinion also seems like a premonition of more insults and attacks on the Supreme Court from within the judiciary.

Eric Wessan is the solicitor general of Iowa.