 On the screen we have Abbey Soyfer, we have Chuck Crumpton, we have retired judge Walter Kiromitsu and we're going to talk about the status of the Supreme Court and I guess we're going to spring off Linda Greenhouse's article about the fragmentation in that Louisiana case. But Abbey, can you tell us roughly what the parameters of this discussion are? Well, the Supreme Court has done surprising things many times but what Linda Greenhouse has developed was great clarity I think. She writes every other week a column in the New York Times and used to cover the Supreme Court for many years. She really knows the inside story and she has an article two weeks before that's called the Supreme Court fails us and I think it's not the first time but it is pretty blatant that the Supreme Court is failing us these days and I think it is a mistake for people to assume that what they're doing is merely interpreting the Constitution. That's far from what they're doing. They are in fact making it up as they go along and they are doing some things in cases that have never been done before so it's not that they are conservative in the sense of following precedent. They're conservative perhaps politically but they are very activist in the role that they're playing and this has been true of the court at other times but this is one big hit after another as it were and a lot of it is about and Linda Greenhouse is very good about this what you might call inside baseball so you really have to be following what they're doing. The case that she talked about there was the Wisconsin election case where they had a remarkable sentence and she points it out she says she quotes and there's no one who was willing to sign this majority opinion this court has repeatedly emphasized that lower courts should ordinarily not alter the election but she says ordinarily what are you talking about the reason for the dispute in Wisconsin was because of the pandemic and that's why a hundred and eighty polling places in Milwaukee were down to five and why people were put to the choice of endangering their health and perhaps their lives or not voting because what the Supreme Court did was to impose a new restriction you have to have it postmarked by a certain date which had not been part of it at all and ten times as many requests came in for absentee ballots and the court nonetheless said oh we can't process them but you still have to have it postmarked I mean really impractical in the extreme and really I'm afraid disclosing a kind of political approach that we haven't seen since Bush versus Gore and Bush versus Gore was pretty shocking at the time the court itself said this is a precedent only for this day as it were a ticket for one day and one day only don't follow this but now the court's not doing that and Citizens United is another example where all of a sudden they departed from lots of precedent and said oh now corporations nonprofits labor unions have First Amendment rights and we're gonna run with that which they've done and they've done it in terms of the conscience that some kinds of corporations have if they object to a health care provision they've been really over and over again saying things that no court had said before and that are clearly not in the text of the Constitution so this is an extreme activist court and people shouldn't be fooled by the label conservative well Avi I mean you talk about a couple of things here and it it sounds serious it's beyond fragmented it's like you know the plain meaning of the word ordinary it you don't have to you don't have to go to Yale and be on the law review and be the editor to know what the word ordinary means likewise you don't have to have those kinds of credentials to understand what people out there in the community are thinking all you have to do is read the newspaper and be a citizen of the times so this sounds pretty serious and my question to follow up with you is it's just a one-way street has this court completely abandoned you know the quality of law that we used to expect from the Supreme Court can we come back from this well I think we can come back from this and I don't know about completely there are some cases where they still follow the law but in these very significant cases I think it's very concerning and and there are things to be done and it's not just to label them as Republican justices which I think is a mistake I think you have to look behind that label and say it's not that they're Republican it's that they don't have the respect for precedent that the court traditionally has had and in the the other article that the Linda Greenhouse wrote she talked about Justice Kavanaugh writing about starry decisis about following precedent and he wrote about it in a way she called it 30 ways to lead your lover that he wants to be setting a table to say we don't have to follow precedent any longer they've already been saying that in an alarming number of cases and there are some big ones coming up where it looks like they're kind of setting the table to say oh starry decisis following precedent we don't have to do that so judge Kirimitsu you know George Washington said in the letter way back when the true administration of justice is the firmest pillar of good government can can anybody skilled in a law or in public policy or simply who understands the nature of the country can anybody say that this is the true administration of justice yeah you know I think to put this in proper context obviously hit the nail on the head and this is similar to what why judge Jim Danenberg you know resigned from the board Supreme Court bar for the same reasons you know the Supreme United States Supreme Court right now has demonstrated exhibited that they are way out of line they're very politically active and we need to stop this now obviously we can't we can't just walk right into the Supreme Court and say you know change your ways but we have ways to voice our opinion I think we need to follow the lead of judge Danenberg amplify expand why he resigned after 48 years as a member of that bar and that's why we're here talking about it because we need to find ways to preserve what Chuck Compton aptly described as the three eyes judicial independence impartiality and what's the third eye Chuck integrity integrity three eyes and we need to do that and I have some proposed action plans that we need to embark on but I think right now Jay we need to take action as best as we can and try to get the forces behind us so that the Supreme Court the administration especially president hears that there's strong resistance to this politically active United States Supreme Court and we need to have this changed you say politically active you know I people called Earl Warren an activist is it the same use of the term the activism of the Earl Warren court the same as the activism of the of the rich the John Roberts court I think the word activist is in itself not negative you can be politically active and still follow judicial precedent okay Earl Warren's court they were very liberal but they respected the rule of the law and they also respected judicial precedent which fancy people call it the star decisis however this United States Supreme Court is politically active in a negative way because they disrespect or just disregard the rule of law and disregard precedent use precedent only to their politically active convenience that's the big difference if this keeps going if we have more of this kind of case more cases where you know there's the rule of law is not respected where the reality on the ground is not respected what happens what is the ghost of Christmas future hey my response is actually a question for Avi and Walter and that is what are the best avenues to not just stem this tide but to actually turn the time can state courts start to assert independent rulings and bases diverging from the Supreme Court can state governments start to establish their own directions and choices as Governor Newsom has done in California and the whole alliance of Western governors and Northeastern governors have begun to do and now some Midwestern governors they can citizen groups and law groups form alliances can all four of these begin to form alliances to start to develop their own direction to affirm the rule of law precedent and conscientious responsible decision-making what do you have your question and to me that sounds like it is the ghost of Christmas future a new kind of federalism talk about fragmentation there you go can these United States work that way well there was an occasion of course when they didn't it was called the Civil War thank you and there's an additional tragedy and this is not talked about much but I think the additional tragedy is that right after the Civil War Congress really wanted to do some things about racial discrimination they understood what was going on in the south and the way in which former slaves were being kept in servitude in one way or another with violence and with private depredations of all sorts and they passed a bunch of statutes between 1866 and 1875 the court then went about basically viscerating those statutes some of them are still on the books and can be used in civil rights and civil liberties cases that's important but the thrust of what Congress was trying to do has been forgotten because everyone wanted to sort of get back to normalcy and normalcy in many ways was racism and was perhaps too much respect for the states so there's a paradoxical irony in now saying well the hope may be in the states and it may be but state courts as Chuck in his rhetorical questions suggested state courts certainly can do things and in many cases if they're careful they will be immune from US Supreme Court review it's not to say that there's a real clash if there is a tension between the federal constitution and the state constitution that the state will win but the states can say we're basing this in the state constitution going further in protecting rights than the US Supreme Court has gone and that's well established that they can do that what's how's that gonna happen and I think Chuck ought to talk some about long ago and far away the 1960s and the role of the people as well as the courts indeed Chuck is a child of the 60s even now what is your answer to that and could we have a situation with the state's courts rule the Supreme Court you know doesn't accept that or doesn't believe it is consistent with earlier Supreme Court rulings and the state's courts ignore the Supreme Court are we going there yeah I think that's a really great question because if you look at we what we might learn from the 60s who what if people carefully and strategically chose their activities their protests their demonstrations their voicings so that if they were challenged they would have to be state court challenges so that the state courts could then affirm their citizens in expressing and asserting the rule of law in ways consistent with precedent I think strategy is going to be absolutely critical in this because the other folks who have directed it away from equality away from judicial independence impartiality and integrity they have had a strategy for many decades and it's working really well for them who could imagine that a guy like Mitch McConnell a year before President Obama's term was up could say I'm going to shut down all federal judicial appointments including Supreme Court until we have a new election just in case we might get one of our own in well to make it slightly worse you know what we have right now is he brought the Senate back from some kind of recess due to the COVID crisis not to work on the COVID crisis but to confirm some judges and appointments you know what's wrong with this picture Walter we have a very serious problem going on here and you mentioned earlier I wouldn't want it to get lost that you had some solutions you had some initiatives you wanted to talk about what are they okay well you know the again the main focus is to restore the three eyes judicial independence impartiality and integrity okay now there are several fronts that we could approach our response to the United States Supreme Court's political activity the first front and the foremost front is to start with a small task force okay it doesn't have to be from Hawaii but since we all in Hawaii we're gonna start it in Hawaii and that task force should have representatives who are concerned about this and who are willing to do something about it okay now the fronts the areas that we could address to resist and to change would be one education and this is where Avi and the law school come into play because to educate to reemphasize judicial precedent judicial integrity independence and so forth to teach that and emphasize that and repeat that to our law students that's educating for the next generation we may we might not be able to change this tomorrow or next month but the graduates from the law school when they have they're armed with it being educated of the importance of judicial independence and integrity and also star decisis of precedent they'll keep on repeating that repeating that and we need to go to the next level we've already I've already contacted the DOE the public school education system the social studies curriculum director and see how can we integrate and emphasize the the importance of judicial independence into our public education system I also contacted the Hawaii private schools association to see how we can again improve the curriculum so it will emphasize the importance of judicial independence no that's one front of education the second front is our voice we need to express what Jim Danenberg has expressed and take action that way and which representatives would be best to voice the resistance we have a number of groups the American Junicature Society the American Board of Child Advocates making trial lawyers they our own Hawaii Bar Association some of them may not may may not want to step on anybody's foot however if we don't initiate it nobody will do anything about it so you have the education the voice and the third one is elections like Avi pointed out in the last program we need to elect representatives administration leaders who believe in judicial independence judicial precedent and will not will emphasize and enforce that the third or the next front would be voice education and the question of bringing the voice education in the election and the fourth front is as Chuck mentioned working with the state judiciary okay we need to maintain the quality of judges that we're fortunate to have in Hawaii and that's largely due to this judicial selection process we have in Hawaii we are able to select and nominate and appoint judges who are highly qualified and they've done a terrific job so we need to again emphasize the continued surveillance or monitoring to make sure our judiciary from the state level believe in what we are talking about and they enforce it we start at that level and go on to the ninth circuit and to the circuit court level and then go on to the United States Supreme Court eventually so those are the funds that we have we have a lot of work to do but one of my colleagues emphasized and this I really believe in she said I think this movement that we're talking about is one of the most important crusades of my lifetime that's how important it is it really it's really a prominent I totally agree if you yeah you know one one element you didn't mention Walter is the media to make it oh yeah in the media and you know my brother Jean and a fellow named Scott harsh barter used to be the Attorney General Massachusetts are involved in something called L that lawyers for a defense of American democracy held that but you know they haven't gotten that far and it takes a lot of effort a lot of time and maybe you know years of work before you actually make it an impression on a whole society and I think the most you know the most immediate thing in terms of making the point is the judiciary to find good judges who will focus on independence but also I've been I wanted to ask you about what is the role of the law school because law schools haven't necessarily gone this direction but how could you get legal training in Hawaii to adopt and you know incorporate Walter's initiative well the law school in Hawaii is where you should do it of course yeah since school of law and I think we have a wonderful blend of support for students actually like law school which was not my experience and is not the experience of many if not most lawyers and they support each other were the most diverse or certainly one of the most diverse law schools in the country so you learn something about how important it is to remember where you came from but also it's important to be open to learning from others and that's true in terms of food and music but it's also true in terms of the way you think about the law and there are many different ways to think about the law the old idea of think like a lawyer there's not just one way that a lawyer thinks there are many different kinds of lawyers of course but I think what goes on in legal education is development of critical thinking that's really true and very important as well as involvement as citizens so even if you don't become a lawyer and some people come to our law school to be leaders as CJ Richardson used to talk about not even thinking that they want to practice law they wind up being leaders and their leaders on the grassroots level committees and task forces and so on but also a lot of them are involved of course in the political world the judicial world and so I think law school is a place where we are bread and butter is kind of looking at what judges do critiquing what judges do and for all that I've just said critical things about the US Supreme Court at least they try to explain what they're doing they write opinions perhaps hiding behind a court decision that isn't any justice like the one we talked about before but they try to explain themselves and so our job is often to say wait a minute that doesn't make any sense or here's another precedent that goes the other way and so that's a very important thing that we do and compared to the legislature that is our Congress and the executive it's sort of straight talk within the parameters of what judicial opinions look like and so it's open there for everyone to read and to criticize so obvious a time to be more strident about this not only the law schools but the legal community to say in the words of the network movie I'm mad as hell and I'm not going to take it anymore and I'm seriously going to go out and advocate for this and I'm not taking no for an answer is it is it time for a strident kind of response well I think it is increasingly a time for strident response but strident response brings strident response to the response right so people were talking about the Michigan protesters about open up Michigan and Chuck and I talked about this a little and in fact they do have a right probably to protest and unfortunately they have a right to open carries so they I think that's really stupid wrong headed all the bad things one could say but I gather in Michigan you're allowed to run around with a semi-automatic rifle so they're within their rights now they're not within their rights if they're within six feet of each other and the governor said you shouldn't be within six feet of each other so stridentcy I think is not the only way to go but Chuck I think we'll talk about some of the the people in the streets of the 1960s where it really did move government it seems to me yeah Chuck let's go to you we're almost out of time and you know what about that and what about the the Hawaii State Bar Association too can you fold that in somehow I think Avi and Walter have hit exactly on the heart of the matter that the rule of law at its best especially now in a trauma crisis besieged society is collected it's collaborative and it is conscientious combining the independence the impartiality and the integrity it's not the rule of law is not divisive it's not a leaders it's not destructive of the institutions and the values that our society depends on and that connect us as people if the rule of law really comes out as we are in this together exactly has walters examples have laid out a path for and exactly as obvious values and principles have laid out a path for that is our best hope we can do this together because then the people who face elections the people who face appointments will have to pay attention because their safety their security will depend on some measure of consensus with our movement well you know what you started something Walter don't stop your your list of things in this discussion it's very important it has to be continued and repeated and we have to bring other people in on it and they're here on a given Tuesday morning is not enough we have to reschedule we have to go forward right now we're out of time thank you Avi Stoyfer thank you Chuck Crumpton thank you Walter Keremitsu we'll do it again stay by stay tuned thank you jay for the opportunity thank you very much thank you all for the discussion