Recently, a letter from the America First Policy Institute garnered some local attention by suggesting that three justices of the Hawaiʻi Supreme Court should be disciplined for bad-mouthing the U.S. Supreme Court.
The letter concerns Granillo v. State, a 91-page opinion issued July 15, authored by Justice Todd W. Eddins and joined by Chief Justice Vladimir P. Devens and Justice Sabrina S. McKenna. The case set a new Hawaiʻi standard for post-conviction relief when forensic evidence presented at trial is later shown to be false. The letter takes no issue with that state-law holding, but is concerned about the roughly eight pages that follow it, which the letter describes as “a sweeping attack on the integrity of the United States Supreme Court and its justices” across abortion, voting rights, campaign finance, partisan gerrymandering, presidential immunity, religious liberty, firearms regulation, administrative law, agency removal, federal spending programs, and birthright citizenship decisions out of the Court that have been handed down over the past few years.
The letter said that the eight pages were a screed that had nothing to do with the Hawaiʻi Supreme Court’s holding. This writer begs to differ. Our supreme court noted that its decision was based on provisions of the Hawaiʻi Constitution that are similar to those in the U.S. Constitution, but it was going to interpret our constitution differently, which it has the right to do, because there are interpretations of the federal constitution being handed down in recent years that our local justices could not stomach. Those eight pages, which are not the court’s first swipe at SCOTUS and may not be the last, add to the justification for a Hawaiʻi Constitution interpretation that differs from that of its federal counterpart. “This court does not anchor Hawai’i’s due process rights to the federal floor,” the Granillo opinion says. “Especially one that keeps sinking.”
The letter said that those parts of the Hawaiʻi opinion were in defiance of the U.S. Supreme Court decisions and were harmful to the rule of law. The letter cited what it called precedent “for taking disciplinary action against sitting judges who have wrongfully attacked the integrity of [the Supreme] Court.”
That precedent, however, a Seventh Circuit Judicial Council decision resolving complaints against a United States District Judge, actually says something else. The Seventh Circuit case concerned a judge who wrote a law review article that was, like the Granillo opinion challenged here, sharply critical of U.S. Supreme Court decisions. The Judicial Council stated:
The vast majority of Judge Adelman’s article at issue here consists of substantive criticism of Supreme Court decisions. Those criticisms are well within the boundaries of appropriate discourse. As noted above, much of Judge Adelman’s critique draws from the dissenting opinions of Justices in those decisions. Without endorsing or disagreeing with Judge Adelman’s views of those cases, the council finds no ground for discipline with regard to the vast majority of the article.
“Judges should expect tough criticism of their work,” the opinion added. Sometimes their own colleagues, in dissenting opinions, are some of the harshest critics using the most pointed language.
We also observe that Judge Adelman was in a more vulnerable position because he was a federal judge whose court was supervised by the U.S. Supreme Court. State court judges must follow federal interpretations of federal laws and the U.S. Constitution, but are in no way subordinate to the U.S. Supreme Court on issues of state law or the state constitution. That is part of the way our government was set up.
We live in a society where freedom of speech is one of our most cherished values. Judges, who discuss some of our most important legal and political issues, can be a key part of the debate on those issues. We need to hear more from you, not less.
You go, Justices Eddins, Devens, and McKenna!
Tom Yamachika is president of the Tax Foundation of Hawaiʻi. Reprinted with permission.
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