A State Supreme Court Justice Decries the “Horrors and Treachery” Coming From SCOTUS
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
Perhaps no lower court judge has condemned the U.S. Supreme Court’s reliance on bogus history and racist values as sharply as Hawaii Supreme Court Justice Todd Eddins. In several scathing opinions, Eddins has decried the conservative supermajority’s radical reversal of settled precedent in the name of a conservative theory, originalism, that’s both dangerously retrograde and totally unworkable. In Tuesday’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern interviewed the justice about his very public criticisms of SCOTUS and his embrace of state constitutionalism to limit the fallout in Hawaii. Their conversation has been edited and condensed for clarity.
Dahlia and Mark will interview Eddins in Washington on Tuesday at a live taping of Amicus. Buy your tickets here.
Mark Joseph Stern: You’ve written very powerfully that judges are not historians. And yet it seems that the U.S. Supreme Court is calling upon all lower courts to play the role of amateur, dilettante historian. Can you talk about some of the practical problems with that?
Justice Todd Eddins: In a wonderful opinion, a federal judge wrote that we are not trained as historians—we practice law, not history. And that’s the problem. I think real historians look at the judiciary with shock to see that we think history has such certitude. And we don’t have the opportunity, or even the ability, to weigh into the rigor of historical methodology and historical integrity when deciding cases. How are supposed to decide what is history? Do we outsource it to A.I.? Do we deputize our law clerks as historians? Do we rely on partisan amicus briefs? I don’t want to do that. But it seems like the United States Supreme Court tends to cherry-pick history that way.
Then you run into the problem of Whose history are we really talking about, anyway? There’s certainly a few white men who decided things back centuries ago, when women and people of color were excluded from public participation and deliberation. Their views are nonexistent. So it’s absolutely impossible to try to root around in history and excavate 18th- and 19th-century experiences and try to apply them to 21st-century problems. Aside from being so whacked-out and silly, it’s just not practically possible.
Dahlia Lithwick: I’m hearing you say a couple different things. One is that this is not doable. This is not our job. Another is that it’s insane to put a thumb on the scale and somehow carve out women and people of color, who were expressly excluded from participating in the moment of constitutional deliberation that we’re now enshrining as the only viable moment. And then you’re saying this third thing, which is that, by the way, this is a completely bonkers way to organize public life right now because technology has changed so radically.
All those things are certainly reasonable critiques of originalism, but you have chosen to do something different, which is to weave them into your judicial opinion writing. I’m very curious what led you to start using your work to offer these very public critiques, which are very meta and usually not what jurists do.
Eddins: I think a lot of federal judges are effectively silenced. They don’t feel they’re able to really critique what the high court’s doing. But state courts are not beholden to the United States Supreme Court; we are essentially insulated when we decide things based on state constitutional provisions. And as I’ve sat out here in my office in the middle of the Pacific over the past few years and watched what’s come out of the U.S. Supreme Court, I realized I had the opportunity to really voice some of these thoughts that have been percolating in my head. I think I have a responsibility to speak out against the horrors and treachery that goes on at the highest court in the nation.
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. You’re talking about times when human beings enslaved other human beings, when women were just an appendage of their husbands and had no contractual rights and no property rights. It makes no sense for contemporary society to pledge allegiance to the founding era’s culture, and I had the opportunity to write that. I’m lucky to have such a supportive court; they said “Go for it,” because that’s what we collectively believe.
Lithwick: For a lot of judges who are trying to apply all these new tests coming out of the Supreme Court, there’s this deep sense of nihilism because suddenly everything is new. We’re in a wholly different world. Yet there are normative reasons why we need to have a dependable, predictable interpretation of the Constitution. And that was one thing I read in your Wilson opinion: the sense that we need to know what the law is. It can’t just be Etch A Sketch-ed, erased, and rewritten on the fly.
Eddins: You know, when precedent is for suckers and we don’t know whether settled law will become unsettled every June, it’s really hard for the judiciary to function. It’s hard for judges to operate when there’s a lack of stability. And it’s not just judges; it’s the litigants, the lawyers, the law professors who have to tear up their syllabuses. I mean, it’s fundamental to our American system of justice that law works incrementally, that cases build upon cases, and that we rely on precedent. That’s the stability of the law. And when you have a group of people who come in and disregard precedent, it really unsettles things; it causes chaos. People don’t know how to operate.
The law is now constantly shifting—you said nihilism, and that’s actually what it is. I think it’s also a lack of humility, a lack of respect for all the law that’s been out there for centuries of the American judicial system. Who gave these originalists the right to kill the Constitution? And when the Constitution is killed, where do we stand? It makes it so difficult for courts throughout the land.
Stern: In the Wilson case, you were tasked with applying Bruen’s “history and tradition” test by poring over the historical record to find these analogs from 1789. Can you talk about what the process was like for you, trying to apply this ridiculously amorphous newfangled test and turn it into something that looks like law?
Eddins: It was actually a pretty fun process because the U.S. Supreme Court totally disregarded the text, history, tradition, and purpose of the Second Amendment. So in Wilson, we decided to play on the originalism playing field and show how the justices were incredibly dishonest about how law and facts are cherry-picked. That was not a difficult thing to do.
Now, what we also did was trace back the real history and tradition of Hawaii. And if we trace back the tradition of our state, there absolutely was no right to carry lethal weapons in public for possible self-defense. It was an incredibly joyous exercise for me because I knew we were on the correct legal terrain. The Hawaii Constitution’s counterpart to the Second Amendment has the exact same words. So I thought, Hey, here’s an opportunity to take down the dishonest U.S. Supreme Court’s analysis of the Second Amendment, which snubbed federalism principles and increased homicide throughout the nation. Wilson really opened up the opportunity to articulate the importance of state constitutionalism in protecting the fundamental rights of citizens. Of course, Dobbs raised awareness of interpreting state constitutions to, ideally, protect every state citizen’s fundamental rights, since the U.S. Supreme Court is abdicating that responsibility.
Stern: Over the last few years, conservative litigants and justices tried to strip the ability to protect voting rights from state Supreme Courts. And it’s hard not to think they were motivated by fear of state Supreme Courts acting independently, departing from the phony originalism of the Roberts court and actually protecting the right to vote, which we used to consider fundamental.
Eddins: Absolutely. And again, that’s just more dishonesty. The U.S. Supreme Court’s decisions are really destroying democracy. It’s just race to the extreme in case after case. It tears at the fabric of our nation and what I view our federal Constitution to be. And now, over the last few weeks, it seems like it’s not just personal values and preferences that they’re injecting into their jurisprudence; they also give preference to specific individuals, and that’s where the court is truly eroding confidence in the judicial system.
Stern: When you say they’re giving preference to specific individuals, you’re thinking about Donald Trump in the presidential immunity case?
Eddins: I am.
