Someone should check on the members of the Hawaii Supreme Court. And litigants should certainly keep an eye on their ongoing disregard for the rulings of the United States Supreme Court.
One would think that Hawaii’s continual pattern of rebuke by the Supreme Court would chasten the state’s high court a bit. Just last month, the Court struck down Hawaii’s so-called “vampire rule” in Wolford v. Lopez, holding 6–3 that the state’s law—which made it a crime to carry a firearm onto private property open to the public absent the owner’s express, affirmative consent—violates the Second Amendment. Justice Alito’s opinion for the Court made clear that “the Second Amendment has the same meaning in all parts of the United States” and “cannot give way to ‘the spirit of Aloha’ in Hawaii . . . any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald).”
Hawaii teed that memorable line up for Justice Alito. Two years ago, in State v. Wilson, the Hawaii Supreme Court—in an opinion by the same justice who authored the diatribe discussed below—announced that “[t]he spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons,” and that Hawaii would read the Second Amendment “differently than the current United States Supreme Court.” When Wilson reached Washington, Justice Thomas, joined by Justice Alito, issued a statement respecting the denial of certiorari noting that the Hawaii Supreme Court had simply “ignored” Bruen.
But instead of finally taking the hint after Wolford, Hawaii’s high court has gone on the offensive.
Earlier this week, in Granillo v. State, the court issued a meandering, nine-page broadside against the U.S. Supreme Court, tucked inside an otherwise unremarkable post-conviction opinion. The case involved a 1990 sexual-assault conviction built partly on FBI hair-and-fiber testimony the Bureau itself later admitted “exceeded the limits of the science.” Granillo argued that the same agent’s since-discredited fiber testimony should be judged under the “false evidence” standard rather than the tougher “newly discovered evidence” test. The court agreed and ordered a new trial.
Then, apropos of nothing in a case about 1990s forensic evidence, the majority pivoted to airing its grievances with U.S. Supreme Court jurisprudence. Pages 72 through 80 are worth reading in full, if only to marvel at the scope and arrogance of the digression, spanning voting rights, campaign finance, abortion, religious liberty, the Second Amendment, the major questions doctrine, Chevron deference, the spending power, the removal power, and birthright citizenship.
How ugly and unhinged were the Hawaii justices? They accused the U.S. Supreme Court majority of dishonoring Brown v. Board of Education (1954) and reviving the jurisprudence of Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896). Think I’m exaggerating? Here’s a direct quote from their opinion: “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.”
Stunningly, the court accuses “[t]oday’s hubristic originalists” of using constitutional interpretation “to control modern life,” and that the Supreme Court “overrides what Congress passed” and “overrides what the people chose. All to serve its own ends.”
Hawaii’s high court declared it “take[s] no guidance on the meaning of due process from a court that gutted due process protections in Dobbs,” which, it claims, “erased a ‘generations-long constitutional right, stripping autonomy from half the population, and empowering states to force birth.’” It continues: “A court that systematically dismantles democratic safeguards, steamrolls constitutional liberties, and tramples human dignity does not chart the course for the Hawai’i Constitution.”
The Hawaii opinion attacks the major questions doctrine as “homemade” and asserts that Trump v. Slaughter rested on “a cherry-picked slice of history—a century of settled practice recast as a mistake, competent governance sacrificed to the partisan cause.” It smears dissenting justices in Trump v. Barbara as “fair-weather textualists—living constitution originalists, really” who “deserted the text and our nation’s history the moment it promised citizenship.”
Piling onto its Dred Scott–Plessy demagoguery, the majority brazenly claims: “The Roberts Court sees only white.” The court accuses the Supreme Court of “turn[ing] its back on” the Fourteenth Amendment, “engineering the dilution of Black votes, the unraveling of hard-fought civil rights remedies, and the erasure of Black history,” driven by “white sight, by design.”
All but admitting its intent to disregard Supreme Court precedent, the Hawaii court states, “[w]hen six justices walk away from those they are supposed to protect, state constitutions hold the line. That is not defiance. That is the design. State constitutionalism makes it easy to consider Roberts Court jurisprudence ‘white noise.’”
Litigants in Hawaii state court should take note. The state high court’s eagerness to broadcast contempt for the institution reviewing its work speaks volumes about its view of the judicial role. One can only assume that more defiant rulings will follow, and that the Supreme Court hasn’t seen the last of Hawaii’s mischief on its docket.
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One final aside, given recent scrutiny of lawyers’ usage of AI tools in court filings. Curiously, the Hawaii high court’s opinion is littered with negative parallelisms, a common hallmark of AI-generated text. Just a few examples:
- “The harm happens at conviction, not discovery.”
- “This was not class association. It was source attribution.”
- “That is not what a neutral expert does. That’s what an advocate does.”
- “What matters is whether the trial was fair. Not whether the prosecutor knew it wasn’t.”
- “The constitutional injury is not prosecutorial bad faith. It’s the use of false evidence to convict.”
- “Good faith describes the lawyers. It does not describe the defendant’s plight.”
- “The Fourteenth Amendment is not colorblind. It never was.”
- “That is not blindness. That is white sight, by design.”
- “A Constitution interpreted this way is not colorblind. It is whatever the Court needs it to be.”
- “Federalism is not a formality. It is the architecture.”
- “The focus is not on what remains in the State’s case. It is on what the false evidence may have done to the verdict.”
- “That’s not a defect. That’s the protection at work.”
- “Materiality is not automatic reversal. . . . The standard is no rubber stamp.”