Impact of our Supreme Courts
Gilbert S.C. Keith-Agaran | Photos courtesy Gilbert Keith-Agaran
Chief Justice John Roberts recently complained about the decline in respect and deference to his court as an institution (and perhaps to some of the members as well), writing in his annual report, “Within the past few years, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.” Roberts expressed concern for the physical safety of the court, noting: “Violence, intimidation, and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable.” Further, Roberts wrote, “Disinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence. At its most basic level, distortion of the factual or legal basis for a ruling can undermine confidence in the court system. Our branch is peculiarly ill-suited to combat this problem because judges typically speak only through their decisions. We do not call press conferences or generally issue rebuttals.”
There was a certain amount of rather uncharitable schadenfreude expressed by critics of the current SCOTUS conservative majority rulings—overruling Roe v. Wade, eliminating deference to administrative expertise, barring affirmative action in college admissions, and creating new and broad presidential immunity from criminal prosecution—at the C.J.’s comments. And this was not just postings anonymously on social media. Some of it was no doubt fueled by statements the different justices made during senate confirmation suggesting (or promising–depending on your hopes) their adherence to following longtime precedents such as the now defunct Roe v. Wade. But sooner than you could say no hearing for Barack Obama’s nomination of Merrick Garland to SCOTUS, the six-member conservative majority began overruling cases in successive terms, stare decisis be damned. Not one of the rulings expressed the consensus of the entire nine-member court.
Locally, Hawai‘i Supreme Court Justice Todd Eddins prominently criticized the federal high court majority’s use of “originalism” in his opinion in State v. Wilson, 154 Haw. 8, 543 P.3d 440 (2024). In Wilson, Eddins rejected following the SCOTUS open carry ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). As Justice Clarence Thomas recognized recently when SCOTUS rejected the review of Wilson, “[the Hawai‘i Supreme Court] spent the bulk of its opinion arguing what the Hawai‘i Constitution does not confer an individual right to bear arms, with analysis that doubled as a critique of this Court’s Second Amendment jurisprudence. The court specifically aimed our focus on original meaning. See id., at 19–23, 543 P. 3d, at 451–455. Bemoaning the policy consequences, the court asserted that an originalist interpretation of the Second Amendment “disables the states’ responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement,” by putting firearms restrictions “mostly out of bounds.” Id., at 22, 543 P. 3d, at 454. And, it denigrated the need for public carry in particular, rejecting as un-Hawaiian “a federally-mandated lifestyle that lets citizens walk around with deadly weapons.” Id., at 27, 543 P. 3d, at 459. In the Hawai‘i Supreme Court’s view, a sounder approach to constitutional interpretation would give due regard to the “spirit of Aloha” and would preclude any individual right to bear arms, or at least subject it to “levels of scrutiny and public safety balancing tests.” Id., at 21, 27, 543 P. 3d, at 453, 459.” (Thomas, J, dissenting). Justice Thomas (joined by Samuel Alito) invited revisiting the issue in a future case: “In an appropriate case, however, we should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.”
Eddins’ opinion has made him a darling of the liberal and progressive legal commentariat. Eddins commented in Slate (May 14, 2024), “I mean, it’s absolutely astounding that originalism revives the value judgments of a racist, misogynistic, homophobic society and constrains the value judgments of contemporary judges.” Eddins takes the view that the Hawai‘i judiciary—any State judiciary—is not completely subordinate to SCOTUS when interpreting and relying on its own State constitution. For longtime members of the Hawai‘i Bar, this is not the first conflict between the federal judiciary and the Hawai‘i Supreme Court. The respected, late U.S. District Court Judge Martin Pence appeared to be in active dialogue with William S. Richardson’s Hawai‘i Supreme Court on water law in a series of cases on plantation stream diversions and the developing Public Trust line of cases in the islands.
But criticism of the Roberts court has not been limited to liberal voices. While SCOTUS has been criticized for abrupt deviations from supposedly settled precedent, conservatives appear willing to revive open defiance of court rulings. Prominent conservatives have expressed criticism that an all-powerful judiciary could limit or even oppose the executive’s wielding of power. In 2021, J.D. Vance commented, “I think that what [Donald] Trump should do like if I was giving him one piece of advice, fire every single mid-level bureaucrat, Every civil servant in the administrative state, replace them with our people. And when the courts, because you will get taken to court, and then when the courts stop, you stand before the country like Andrew Jackson did and say, the Chief Justice has made his ruling. Now let him enforce it, because this is, I think, a constitutional level crisis if we continue to let bureaucrats control the entire country, even when Republicans win elections, then we’ve lost. We’ve just permanently lost. We’ve permanently given up.” Now the Vice-President in the second Donald Trump administration, Vance also suggested in a television interview, “The Constitution says that the Supreme Court can make rulings, but if the Supreme Court—and, look, I hope that they would not do this, but if the Supreme Court said the president of the United States can’t fire a general, that would be an illegitimate ruling, and the president has to have Article II prerogative under the Constitution to actually run the military as he sees fit.
While the Yale Law School-educated politician did not specifically advocate open defiance, he noted the checks and balances in the Constitution. “This is just basic constitutional legitimacy. You’re talking about a hypothetical where the Supreme Court tries to run the military. I don’t think that’s going to happen, George [Stephanopolous],” Vance said. “But of course, if it did, the president would have to respond to it. There are multiple examples throughout American history of the president doing just that.”
A law school education teaches—indoctrinates to critics of the ivory tower—the value of precedent (incremental development of law through consistent application of principles in individual cases) and the role of lawyers and an independent judiciary in bringing stability to society. Lawyers and judges are akin to a priesthood maintaining the moral underpinnings of the nation. Generally, lawyers simply preach to the choir, except for occasional sporadic efforts to bring oral arguments into schools. But the assumption remains that the structure of American law as good is unassailable.
For certain founding fathers, of the different proposed branches of the new United States government, the judiciary was naturally the least powerful. The Judiciary, according to Alexander Hamilton, possessed “neither force nor will but merely judgment.” The executive branch appointed officers and controlled an army. The legislative branch made appropriations (the proverbial “power of the purse”) and also created and implemented the laws governing citizens and industry. The judiciary branch could not expressly make anyone do anything. Instead, judges can only pass judgments and depended on cooperation from the other branches to enforce these judgments.
The independence of the judiciary—often a sacrosanct buzzword in the legal community—is foundational in a government with a limited constitution. Unlike other nations, the United States Constitution contains written limits on what kinds of laws Congress can make. Those limits apply only when there is a court to enforce those limits which is part of the logic of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which established judicial review for the first time, and established that SCOTUS could decide whether a law passed by Congress violated the constitution. Over time, critics would argue that the court has seized unwritten responsibility for judging whether the laws passed by Congress are compatible with the Constitution (and local supreme courts for their state’s constitutions), aided by the other branches falling in line. As Justice Robert Jackson put it, addressing himself to the supremacy of the Court’s authority to interpret the Constitution as upheld in Marbury: “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).
Roberts does note, “Of course, the courts are no more infallible than any other branch. In hindsight, some judicial decisions were wrong, sometimes egregiously wrong. And it was right of critics to say so. In a democracy—especially in one like ours, with robust First Amendment protections – criticism comes with the territory. It can be healthy.”
But in the face of challenges, Roberts concluded, “judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees.” Roberts ironically recalled the 1950s and 1960s, when federal judges and the Eisenhower and Kennedy administrations stood together when state governors tried to defy court orders to desegregate schools in the wake of the Brown v. Board of Education.
He fails to note one notable difference is the Warren Court unanimously—liberals and conservatives—ruled together in overruling the Dred Scott decision that separate but equal was fair and legal. The more recent decisions have been largely split between the GOP-appointed conservatives and the Democratic-appointed liberals. Perhaps the C.J. protests too much.
Gilbert S.C. Keith-Agaran practices law in Wailuku. He served in the Legislature from 2009 through 2023.