This Is the Most Withering Indictment of the Supreme Court Ever By a Sitting Judge

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Over the past few months, a growing number of sitting judges have expressed public skepticism^[2] toward the Supreme Court^[3] 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^[4] and majority opinions^[5], Eddins has taken aim^[6] 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^[7] last year—the justice has laid out a comprehensive critique^[8] 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^[9], co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the justice’s latest opinion^[10] 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.

Dahlia Lithwick: I think this takes the crown for the most scathing written critique of the Roberts court by a sitting judge. Justice Eddins truly dropped some fire. Can you remind us what the case was about before we swoon over the words he used?

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^[11] 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^[12] 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.

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. ^[13][14][15]

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^[17] from just last week in a decision allowing ICE to engage in racial profiling^[18]. 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.”

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.” 

Justice Eddins didn’t leave anything on the field. He’s saying what nobody else, at least in the judiciary, seems able to say about the Supreme Court right now.

And also, no lies detected, right? It certainly all checks out with me. I want to drop one last quote that sums it up. He wrote: “A defining feature of Roberts Court jurisprudence is its agenda-driven methodology. … Today’s court often rules not because the Constitution says so. But because partisan preferences and personal values say so.” That is the capstone that I want every American to read if they’re wondering what is going on with the Supreme Court. I want to point to this and say, “That’s it. It’s really not all that much more complicated.”

This is a good place to fold in something my friend Asha Rangappa has been writing about. Each and every time we see the law buckle, the temptation is very strong to say: “The law is nothing. The law is whatever the court says it is. Nothing matters, pass the Heineken.” But what Justice Eddins is doing here—and we’ve had this conversation about Justice Ketanji Brown Jackson doing the same thing in dissent—is saying that this matters. It matters to write it down and call it out. 

It matters especially for judges to put it in an opinion as a reminder: We’re a court too. We’re judging as well. And we think SCOTUS is dead wrong. I don’t know if John Roberts and his colleagues will read this, but I hope other people do so they can see that there is another way of doing things. There is a way to stand by the rule of law and personal freedom and constitutional values. And just because the Roberts court is turning all those things on their head—and refusing to protect democracy and civil liberties when it matters most—there are judges who dissent. And those judges want to point our way to a future where the Supreme Court actually does its job.

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