The state supreme court’s rhetoric could fuel the view that judging is just politics by another name.
The state supreme court’s rhetoric could fuel the view that judging is just politics by another name.
T he Hawaii Supreme Court’s recent decision in Granillo v. State should’ve been a straightforward exercise in state constitutional law. The case involved a sexual-assault conviction that rested in part on hair and fiber evidence. The Hawaii court had to decide whether new scientific advances discrediting such evidence rendered it false and thus violated Hawaii’s due process clause. Hawaii, like every state, may interpret its own constitution to provide more protection than the U.S. Constitution. But instead of limiting itself to that independent state law question, the Hawaii court launched a broadside attack on the U.S. Supreme Court, using rhetoric reminiscent of state courts just before the Civil War.
That rhetoric matters. When a court veers into political denunciation of the outcomes reached by higher courts, especially when doing so is unnecessary to its result, it fuels the fire of political division and undermines the very legitimacy that courts depend on.
Granillo’s language is remarkably inflammatory — and it arises in a rather roundabout way, refuting the concurring opinion’s reliance on another concurring opinion from a Texas Criminal Court of Appeals case and its view of federal due process doctrine. The Granillo opinion is then off to the races, criticizing virtually every major aspect of modern U.S. Supreme Court constitutional jurisprudence. It accuses the U.S. Supreme Court of being “driven by agenda” and animated by an “imperious ideology” that “has cratered democracy itself.” It says the Court is dominated by “hubristic originalists” who are “advanc[ing] a partisan project” to “systematically dismantle[] democratic safeguards, steamroll[] constitutional liberties, and trample[] human dignity.” These aren’t words of legal disagreement. They are words of political indictment.
The Hawaii court is especially dismissive of Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade and returned abortion policy to the states. Post-Dobbs, Hawaii continues to allow abortion up to the point of fetal viability. And according to the Guttmacher Institute, the number of U.S. abortions has increased post-Dobbs, so Granillo’s accusation that the Supreme Court “gutted due process” is not only factually weak, but it contributes nothing to resolution of the issue of Hawaii constitutional law faced by the Granillo court.
Granillo’s criticism of the U.S. Supreme Court doesn’t stop with abortion. It denounces the Court’s First Amendment campaign-finance decisions as “ensuring that those who bankroll elections drown out the ordinary person.” It says the Court’s Second Amendment gun-rights jurisprudence is “making the country more dangerous.” It accuses the Roberts Court of “crowning a president” while also oddly condemning decisions that limit presidential power via the major questions doctrine and Loper Bright Enterprises v. Raimondo, which ended judicial deference to executive agencies’ interpretation of federal laws.
Granillo doesn’t even acknowledge that the many major recent Court decisions such as birthright citizenship, tariffs, authority to fire Federal Reserve governors, and federalization of the National Guard, were significant losses for President Trump. That’s hardly a Court “driven by agenda” or intent on “crowning a president.” Indeed, it criticizes the birthright citizenship decision, Trump v. Barbara (2026), because it was “one vote from writing that right out of the Constitution.” In other words, even a result the Hawaii court agreed with becomes evidence of illegitimacy simply because the Supreme Court’s majority wasn’t big enough.
The Hawaii court’s condemnation of the Supreme Court’s equal protection clause jurisprudence is perhaps most troubling of all. That clause provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court has construed that guarantee to mean that “any person,” regardless of color, cannot be treated differently by law unless the law is “narrowly tailored” to serve a “compelling” government interest. The Hawaii court railed against that long-standing principle, insisting that the U.S. Constitution is “not colorblind” and that race neutrality “is not blindness” but “white sight, by design.” It declared that the “Roberts Court sees only white” and is “blessing discrimination in the name of the Constitution.”
The Hawaii court goes further still, accusing the Supreme Court of “reviving the work” of Dred Scott v. Sandford (1857) — one of the most criticized decisions in the Court’s history. That comparison was a purposeful and dangerous rhetorical maneuver. Dred Scott denied citizenship to blacks, even free blacks residing in states without slavery. Comparing modern equal protection doctrine to Dred Scott equates it with the same kind of deep, intolerable moral failure that sparked the Civil War.
The irony is hard to miss. In accusing the Supreme Court of being agenda-driven, partisan, and hubristic, the Hawaii court employs language inviting the same criticism. It replaces sober judicial decision-making with language more suited to a campaign speech than a court opinion. In doing so, it fuels the views of some (especially non-lawyers) that judging is just politics by another name.
The U.S. Constitution doesn’t allow state courts to disregard federal law whenever they dislike it. Article VI declares that federal law is supreme, and that state judges are “bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.” Since 1816, in Martin v. Hunter’s Lessee, it’s been accepted that the Supreme Court’s interpretations of federal law binds state courts. Thankfully, Granillo doesn’t claim final authority over federal questions. But its tone and framing of the Supreme Court as institutionally corrupt have inched the country closer to overt resistance to federal authority.
Granillo could have strengthened Hawaii law without weakening confidence in the U.S. Supreme Court. Instead, the Hawaii Supreme Court chose to undermine the public’s confidence in federal judicial power. A judicial body worried about our “democracy” should know better.