Ouch

It looks like a simple case about deed covenants, but it is much more than that. 

The case, Hilo Bay Marina, LLC and Keaukaha Ministry LLC v. the State of Hawaii is about a parcel of land sold to a Mormon Official in 1922 by the State of Hawaii.

There was a covenant placed on the transaction that required the land to be used for religious purposes.

The current owner, David Owens, who wants to use this land for commercial purposes, sued over this restriction, claiming that it was an unconstitutional government endorsement of religion.

The district court ruled against him claiming that such actions were customary for the time, but the Hawaii Supreme Court ruled unanimously for Owens, part of their justification being that when the Hawaii state constitution was adopted in 1950, this was clearly unconstitutional under this document.

This seems to be a pretty run-of-the-mill case, except that one of the Justices, Todd Eddins issued a concurrence where he explicitly accused the Supreme Court in general, and Chief Justice Rpberts in particular, of bias, partisanship, hypocrisy, corruption, and incompetence.

Over the past few months, a growing number of sitting judges have expressed public skepticism toward the Supreme Court as its conservative supermajority rapidly contorts the law to favor Donald Trump and conservative causes. While these criticisms mark an important spark of dissent, they sound downright timid compared to recent excoriations of SCOTUS out of Hawaii’s highest court. In particular, Hawaii Supreme Court Justice Todd Eddins has emerged as one of the judiciary’s most astute and merciless critics of the Roberts court. In both concurrences and majority opinions, Eddins has taken aim at SCOTUS’ radical expansion of gun rights, disregard for women’s equality, and embrace of plutocracy, among other travesties. In his opinions—as well as in an interview with Amicus last year—the justice has laid out a comprehensive critique of the “horrors and treachery” that SCOTUS passes off under the guise of “originalism.”

Last week, Justice Eddins dropped another withering indictment of the Supreme Court’s recent rulings, using its embrace of Christian nationalism as a jumping-off point. On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the justice’s latest opinion and why this kind of institutional resistance to SCOTUS is so important. A preview of their conversation, below, has been edited and condensed for clarity. 

………

Mark Joseph Stern: Property owners challenged a deed restriction, enforced by the state, that required their land to be used for “Church purposes only,” or else ownership would revert back to Hawaii. The Hawaii Supreme Court unanimously struck down that restriction as a violation of the Hawaii Constitution’s establishment clause. But the court unanimously refused to interpret the Hawaii Constitution in line with recent U.S. Supreme Court decisions on religion and instead maintained a sturdier separation of church and state.

Justice Eddins went even further in a concurrence joined by two other justices. He flamed the U.S. Supreme Court for choosing to “steamroll” the First Amendment’s separation of church and state by mandating government support of religion. He wrote:

The federal wall cracks. The Supreme Court’s recent religious clause cases wreck the relationship between free exercise and non-establishment. … The Roberts Court casually dismisses the lessons of American and world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. Bad things happen unless government and religion are completely separated. 

Dahlia Lithwick: Justice Eddins also wrote about something you and I have been talking about for a long time, which is the conservative supermajority making up facts. He called out Kennedy v. Bremerton, the notorious “praying coach” case, writing: “As it often does, the Court repackaged and whitewashed facts to achieve a desired outcome.” This is the same point that Sherrilyn Ifill has made on the show about how the record in that case, and so many others, is ignored.

Mark Joseph Stern: Right—he wrote that Kennedy wasn’t a one-off; it “typifies the Roberts Court’s ideology-driven jurisprudence. Pretend law and pretend facts sub for real law and real facts.” And if that weren’t enough, Justice Eddins took aim at Justice Brett Kavanaugh’s concurrence from just last week in a decision allowing ICE to engage in racial profiling. He wrote that Kavanaugh “conjured facts” that are objectively false by claiming that ICE was simply doing “brief stops for questioning.” And he cited that decision as proof that “even cases that concern core freedoms succumb to brazen factual misrepresentations.” I find it incredibly satisfying to see a judge acknowledge all of these lies after you and I and everyone else have been getting gaslit by SCOTUS for so long. As he wrote: “Pretend law is not law.” 

Dahlia Lithwick: But there’s more! Justice Eddins decried Shelby County v. Holder, accusing the chief justice of “daydreaming a textually-unsupported rule” to maim the Voting Rights Act. And he condemned last year’s immunity ruling for Trump as “disabling the rule of law and enabling executive branch lawlessness with make-believe law.” Then he suggested that the immunity decision shows an utter lack of “institutional competence.” And that’s not all: He also flamed originalism as a “glitchy new methodology” that imposes “value judgments” from the “mostly racist and misogynistic very old days.”

I'm sure that Justice Alito will experience major butt-hurt over this, but the 6 conservative Justices are clearly out of control, and they believe that they are entitled to be corrupt, biased, and incompetent.

They are not entitled, they are self-entitled. 

Here is the video which led me to the Slate article: