Today's hubristic originalists use the same method to control modern life. . . . The Court overrides what Congress passed. It overrides what the people chose. All to serve its own ends. What this Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawai'i's Constitution takes no instruction from it.

I HAVE BEEN MAKING MY WAY through the dense and fascinating reading of the Granillo v. State ruling that I linked to and excerpted yesterday.   And it is fascinating reading touching on a lot of the themes I've written about over the years,  the lapses of those purporting to do or use science, violations of the practice of the legitimate methods of science, over-optimistic claims of those with such expertise,  as well as the often shifty practices of lawyers and courts, some of them based in the ignorance of not only prosecutors, judges and "justices" but over-credulous belief in the power of current science to say what they want to hear, especially from "expert witnesses" who will tell them what they want to hear.  

When I got down to the part I excepted, I regretted that I didn't start sooner yesterday, though I wanted to avoid too dense inclusion of legal citations that would confuse the use I made of it.   I'm going to give you some of that because the entire opinion is far more scathing about the Roberts Court than what I included.   

I have to say I have not read a more well-reasoned and convincing defense of federalism, the independence of state institutions from the federal courts and from each other.  We have been trained by the Warren and, to a lesser extent, the Berger Courts and the novelistic, theatrical, movie and TV presentation of things to think of "states rights" in terms of the federal courts overturning injustices in the most benighted states.  And that is a real thing, or, at least it used to be during earlier periods of the federal and Supreme Courts.  It's not that way in a lot of the less benighted states now.   

I didn't post it but the British journalist Owen Jones did a commentary a couple of months back warning that Britain, with its highly centralized governmental structure was more vulnerable to a fascist takeover than the United States with its strongly federal system in which individual states have greater power than the various subdivisions of governments in Britain.   I think I didn't post it because, fascinating an assertion as that was,  I thought and still think Owen Jones was overly optimistic about the United States.   

But as vulnerable as I think those of us who live in less fascist dominated states are, we still have some reason to value whatever protection our state institutions give us from the likes of Trumpist fascism and the fascist Roberts Court as well as those in the worst states.   I have noted the problem of English and other languages in which words can mean opposite things or things in opposition to each other, "liberalism" being one of the worst.  "Federalism" and its associated inflections is another.   It can mean that some of us living in more egalitarian and democratic states have some protection, at some times from the federal government and, especially, the likes of the Roberts Court,  but it also names the society that put the fascist court in power with a cameo of James Madison - who became increasingly anti-democratic and was always a dedicated racist and slave-holder as well as the reluctant force behind the tragically, badly written "Bill of Rights."  

Here are the paragraphs that get into what I posted yesterday. 

The concurring opinion looks outside Hawai'i for support. To a concurrence in Ex Parte Warner cautioning against side-stepping prosecutorial knowledge. 721 S.W.3d 436, 445 (Tex. Crim. App. 2025) (Finley, J., concurring). Warner is one judge's separate writing on a denied habeas petition. It binds no one. Not even in Texas. And the federal due process doctrine that animates it cannot tell this court how to read article I, section 5.

We are not side-stepping anything. We are doing what state constitutionalism asks us to do. Stand our ground.

The concurrence seizes on the federal precedent the Texas court's concurring judge cited. The United States Supreme Court has “never held that an unknowing use of false evidence violates due process,” that judge wrote. Warner, 721 S.W.3d at 443 (Finley, J., concurring). The concurrence also cites Glossip v. Oklahoma, 604 U.S. 226, 145 S.Ct. 612, 221 L.Ed.2d 90 (2025), as confirming a knowledge requirement. But Glossip addressed a knowing-use case. It involved a prosecutor who knew. Id. at 228, 145 S.Ct. 612. It did not confront what shakes out when an entire branch of forensic science collapses.

This passage - "The concurrence seizes on the federal precedent the Texas court's concurring judge cited. The United States Supreme Court has 'never held that an unknowing use of false evidence violates due process,'”  - makes me think of a case I recall being reported on in which the Rehnquist Court green-lighted an execution in which there was evidence that could have shown that the imposition of the death penalty was invalid (or it could have indicated a false conviction,  I don't recall which) in which Sandra Day O'Connor and her colleagues gave the reason for their refusal to deal with the evidence was that the defending lawyer hadn't filed some brief or other on time.    I have to say what Boudin wrote about the Supreme Court use of "due process" as they make it and made it mean whatever they wanted, depending on the outcome the majority favored will be as much in my thinking about these things from now on.

I'll link to this article about O'Connor (may she be in purgatory as I type this) and her whimsical and inconsistent consideration of life and death while sitting on the Court.   I doubt she or her fellow death-dealing "justices" ever gave much thought to the people who she, late in life, admitted would be executed while innocent in any but abstract terms, if even those.  I doubt the skank ever lost sleep over it.  If the likes of Rehnquist or Thomas has, it was only to relish their role in imposing death. 

That statement is not a boundary. Glossip described the precedent as it stood. It did not shut the door on cases like this one.

The concurrence's insistence that the prosecution's knowledge concession in Butler counsels adoption of Stone in this context, like its reliance on Glossip, ultimately depends on the premise that federal constitutional doctrine controls this court's interpretation of article I, section 5. It does not.

We interpret the Hawai'i Constitution on its own terms. The United State Supreme Court's construction of the federal Due Process Clause does not define the protections of our state's due process clause. This court “reason[s] independently, untethered from the Supreme Court's analysis of the United States Constitution.” State v. Wilson, 154 Hawai'i 8, 14, 543 P.3d 440, 446 (2024).

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. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford, 60 U.S. 393, 405, 19 How. 393, 15 L.Ed. 691 (1857).

Today's hubristic originalists use the same method to control modern life. See City & Cnty. of Honolulu v. Sunoco LP, 153 Hawai'i 326, 361, 537 P.3d 1173, 1208 (2023) (Eddins, J., concurring) (“A justice's personal values and ideas about the very old days suddenly control the lives of present and future generations.”).

The Court overrides what Congress passed. It overrides what the people chose. All to serve its own ends.

What this Court has done to constitutional rights, democratic institutions, and the rule of law explains why Hawai'i's Constitution takes no instruction from it.

Article I, section 5 provides versatile and sovereign protection. This court does not anchor Hawai'i's due process rights to the federal floor. Especially one that keeps sinking.

We take no guidance on the meaning of due process from a court that gutted due process protections in Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 142 S.Ct. 2228, 213 L.Ed.2d 545 (2022). Zuffante called it straight. Dobbs erased a “generations-long constitutional right, stripping autonomy from half the population, and empowering states to force birth.” State v. Zuffante, 157 Hawai'i 194, 200, 576 P.3d 243, 249 (2025).

I think it's pretty clear that the best thinkers among the lawyers, judges and, especially, "justices" don't make it to the Supreme Court very often.   I doubt the judges issuing this well thought out, well-informed  decision would get nominated by a Democrat and confirmed by the Senate.    I think only two of those sitting on the Roberts Court right now could come up with something as well thought out. 

I'll leave it at that though I hope you go back and read where this continues from yesterday's post.