 us on Think Tech Hawaii, we are really glad you're here. And we are going to show our appreciation and gratitude by sharing with you some thoughts of some really insightful, well-versed, knowledgeable people on the right-wing majority of the present U.S. Supreme Court, the risks, the harm, and the background. We have with us former law school dean, Richardson School of Law at the University of Hawaii, Avi Soyfer, personal friend, and whose greatest gift, benefit, and attribute to my personal knowledge is being married to Marlene, who is one of truly most gifted people and filmmakers I have ever seen. She did one on the Brown versus Board of Education at 50, that would make you stop, pause, and watch it again, and possibly tear up. It's moving, it's powerful, look for it. Marlene has put together just an amazing thought piece on film. Troy Andrade from the Richardson School of Law, an awarded, multiple awarded, and frequent professor there, well respected, well loved by the students, by the community, by the administration, and anybody who has any sense of people, as are Sandra Sims, retired judge, wonderful person, author, now working on her second book to help us learn what life on the bench has made available for her in wisdom and understanding. And Louise Ng, one of our leading women's rights advocates, one of the Women Lawyers Foundation founders and leaders, and one of my and many of our very, very favorite people, as are all of these people on today's session. So who would like to start us off? The right-wing majority of the US Supreme Court. Avi, you're the constitutional law professor because you take a constitutional almost every day. I have lots to say about this amazing, concurring opinion by just evidence of our Supreme Court, but I am really anxious to hear from others. I can go on and on, as any of my students and colleagues could tell you, but I'll bat clean up here. Well, Chuck, you want me to start? I can jump in and just give a little broad picture of the lawsuit that happened that sort of instigated this conversation. Okay, that's a good way. Yeah. Please do because Avi thought we were giving him an intentional pass. We're actually just moving from lead off to clean up in the batting order. Okay. All right. Let's hear it. So here in Hawaii and across the United States, there's been a lot of lawsuits that have been filed regarding what people often call climate change litigation. And so here in Hawaii, there was a lawsuit that was filed in Onowahu in circuit court, state circuit court, by the city and county of Honolulu against a lot of oil companies. And all of their claims, I teach torts, all of their claims are tort claims that they're alleging against the defendants. Defendants filed a motion to dismiss for lack of jurisdiction, personal jurisdiction that made its way all the way up to the Hawaii Supreme Court. And on Halloween of 2023, the Hawaii Supreme Court came out with a unanimous decision affirming the denial of the motions for motions to dismiss for lack of personal jurisdiction. And what Avi was alluding to was a concurring opinion by Justice Todd Eddons that I think people have a lot of ways of describing it. I would describe it as a brilliant concurring opinion that calls to task the United States Supreme Court and sort of their views and the trends that they've been moving towards in terms of constitutional interpretation because there are some federal constitutional issues that have been raised in the arguments regarding personal jurisdiction. So I'll stop there, lay the context and then let others jump. Yeah, it's, I read this, Louise, I thank you for sharing this. But when I read this, it actually was kind of emotional to read it because, you know, I know Justice Eddons well, I've seen him in practice. And I know a little bit about the heart and the passion for justice that he brings to the table. And to be in this position where you're called upon to make a seriously critical comment about how our Supreme Court is operating is, is pretty serious stuff. And I think it's something that for most of us who are, you know, are trained in the in the jurisprudence that we are, that's showing us something that you do. And so it just raises questions to me about where on earth are we when it comes to to our Supreme Court? It's actually, it's, it's, it's heartfelt, but it's troubling to me. That's my, that was my, my, my feeling about it. And it's something that, and of course, it's brilliant. And of course, Justice Eddons is, of course, brilliant, we know that. But yeah, that's what I felt. Louise. Well, it really made my day when one of my colleagues circulated to us in the office, Justice Eddons concurring opinion in that case with a wowza comment. And I have to agree. And it really, I guess that it, what it did is it encapsulated for me, my concerns of where the current Supreme Court is going. You know, they're systematic chipping away of basic civil rights that we all have assumed were enshrined in law for the past 50 years. And I started highlighting what the language that I really needed, but I have a, it's practically a yellow, highlighted opinion. But I think, you know, maybe just to read some examples of where I thought it was wonderful how we use this, you know, sort of dull civil, civil procedure issue of personal jurisdiction to just really pound the concept of originalism that has been prevalent in our current Supreme Court. And I loved his opening lines about how enduring law is imperiled, emerging law is stunted, a justice's personal values and ideas about the very old days suddenly control the lives of present and future generations. Recently, the Supreme Court erased a constitutional right. It recalled autonomy and empowered states to force birth for one reason and one reason only because the composition of this court has changed. And then it ends with a statement that the United States Supreme Court could use a little aloha after discussing the concept of aloha, aloha is and why we, the courts in this state need to keep those values in mind. So I thought it was a beautiful opinion and kudos to Justice Evans. Indeed. And it's rare for a judge to be this direct. And he did it. Yes. The language is terrific. There are a couple of things that are funny. The leading case that he was talking about is international shoe. And so he said, for now, international shoe still fits. But who knows, because everything seems to be up for grabs. And I've got to say, they're not really doing originalism, they claim they are. And as he points out, this is the US Supreme Court we're talking about, as he points out, originalism as a theory is supposed to restrain judges. But these justices are completely unrestrained. And the abortion decision is just stunning in its, I got to get there, I don't care how, and I'll throw everything up there. And it's inconsistent with what that justice has written, what the court has said, what precedent says. And they just wanted to get there. And the next day, or maybe the day before within 24 hours, is the gun case. And they do almost the exact opposite, except they claim to be doing history in both cases. And they're not. And of course, if they were doing history, there's a deep problem, which is, who are those framers back in Philadelphia? Right. Oh, they're only white men, right? They weren't very concerned about gender issues or race issues in 1787, 1791. 1868. Right. And 1868 is similarly not concerned about gender and to the extent that they were concerned about race. And this is the new Justice Jackson's point. She wanted to do originalism. He got to pay attention to what they were caring about, what they meant to do, and what they meant to do was protect former slaves. That's clear. And that's using race affirmatively, if you will. And that's exactly where the court went in the other direction, the affirmative action case about college admissions. So I think Todd hats off, even though I'm wearing one right now. And it's really rare for a judge to be this direct. And I really think it's gutsy and very impressive. Well, you had mentioned that there was quite a bit of buzz on campus with our law students. And I'm really interested in hearing what that was because now you're teaching constitutional law. And this makes it very challenging and difficult to kind of convey the principles that we've all come to think comprised the study of constitutional law. How do you do it now? And what are how our students responded? It's a great question. And I've been saying probably each of you privately, it's really hard to do with a straight face these days. If you care about it, then look what they're doing. And you don't want the students to be cynical. So while while went around here to Louise when it went around and Troy is closer to some of that than I am. So Troy, what was the reaction of your colleagues? Yeah, no, it was very much the same thing. And this was circulating among faculty members, but also among the students, students have just finished actually learning about personal jurisdiction. So the first year students. So this was something that was they were very familiar with. I had my students read the case at the beginning of the term because the Supreme Court had oral arguments. I had no thought that this was going to be decided during, you know, within two months of the oral argument. And so it was more of a thought piece for students to just keep an eye on this case. And so students were well aware of this. I think there was a lot of pride too. Justice Eddons is a proud Richardson. Yeah, yeah. So there was a lot of pride around campus like, Hey, this is one of our, our justices going out there and doing what CJ Richardson sort of envisioned 50 years ago from our graduates, right? And so it was sort of for me, like a full circle moment in that CJ's vision is actually coming alive where our court is using our court, right? And the decisions we have, but also to push the federal system, right? And to be very clear and call out the federal Supreme Court justices, some of them on the ways in which they're approaching analyzing these, these cases that come before them. One of CJ Richardson's favorite stories was about talking to Justice Brennan. And CJ Richardson did different things from what the established law was and said in Hawaii, why should we just use Anglo-American common law? We have our own traditions, our own law, and let's use some of that native Hawaiian law. And Justice Brennan told him, don't wait for us, do it. Yeah. And of course he did touch on it too, that there, you know, Justice Ed incited the Aloha statute, right? Which is something unique to our jurisdiction. But it is a guiding principle that I think is really important for all of our leaders here in Hawaii to follow and they do follow it. But I've never seen so much kind of teeth put into that provision like it was in this particular concurring opinion, which gives me confidence actually that perhaps there's going to be more of an effort to use that law to call out certain government conduct, misconduct in the future. Because we're seeing an awful lot of that as well. That's another issue to be addressed is this whole concept of, I mean, civility. I mean, my God, it's, it's sort of like the backbone, I think, of what we've seen in this state for so many years for those, you know, in the practice that's kind of been there. But my goodness gracious, you had fisticuffs in Congress yesterday. Someone, as someone said, you know, they're behaving like middle school students, except this gives middle school students a bad name they don't deserve. Yeah. Yeah. Yeah. Indeed. So I have a question for the constitutional scholars. And so I love how Judge Eddons looks to the values in Hawaii. But does that then embolden other states to say, well, we have our own values and we need to read federal law in light of those values? Hopefully they have good values. But you know, given what's happening in some of the states, I wonder, what's your thinking about that? Well, a little understood part of constitutional law, and this is part I think of what Justice Brennan was telling CJ Richardson, you can use the state constitution and you can use it to expand rights. And that's what's beginning to happen in a lot of states. I think we, in many ways, there are the leaders in Hawaii in doing that. But that's really a very fertile and further oriented way of looking at the law. And we're having Justice Eddons and Justice Sabrina McKenna teach state constitutional law. So this is playing into what has been long time possibility, but not much use. Yeah, and parallel to that too, if I can add, is, you know, I've been thinking through this with the rise of originalism, particularly in the US Supreme Court. Aside from helping our students realize that constitutional law is both federal and state, do we have to teach, and I'm putting on my, I'm the chair of the curriculum committee here at the faculty, like, do we have to teach our students history, like how to use history and actual history, American history, if they're going to understand how to use and make these arguments, if those are the arguments that these justices are going to be most persuaded by. And I think the answer is yes, but do we, how do we do that in a way that, you know, represents sort of the actual history that may or may not be told by a majority of the Supreme Court? Exactly. And whose history are we, and whose history are we shared, is the next question, because there's that movement as well. So that's an interesting question. And particularly here in Hawaii, there's, yeah, whose history? Exactly. Whose history are we talking about? And one of the great advantages of this opinion is that there are a few citations that people really have to follow up, and one of them is to the Magnificent Judge Reeves, who was a black judge in Mississippi, a federal judge. And on this question, once the court started doing what it's been doing in recent years, he said, I'm not qualified as a historian. And so he assembled a panel of historians to advise the court. I think that's a great move, not to all historians, as Judge Sims pointed out, they don't all agree, but you get a sense from them, at least of where the flashpoints are with the disagreement. And that judges are used to. So if we're lucky enough to have a glass almost completely full in our Supreme Court, and one that is rapidly leaking toward zero liquid in DC, except, proportionally, Justice Brown Jackson, Justice Sotomayor, and maybe to a little bit lesser extent, less vocal, Justice Kagan. And it's interesting, right? Three of the four women on the court seem to be what the most wonderful woman I've ever known, who happened to be my mom, the small town Northern Louisiana independent progressive woman, do. They stand up for what matters, for who matters, for those who are most vulnerable, most harm. Justice Eddon's opinion may give us some confidence and certainly inspiration and incentive for his colleagues and for other judges to do that. Do we see other examples of that anywhere, Avi? I think it's starting to happen in many places. And I think we have to be fair to Chief Justice Reckonwell's opinion, too, which is a kind of straight down the middle, very important decision in his own right. And it's longer, by far, it's very careful. But it says this suit can go forward. And that in itself is actually path breaking in a case like this is the first time in the country that this kind of suit, which is sort of modeled on the big tobacco litigation, so on, has moved forward. And that's the major moment. It'll be interesting to see what other state supreme courts will be doing. I'm sure they're going to be looking at this and examining, particularly Todd's, Justice Eddon's concurrence, because they get together and kind of see what things they can agree on and not. That's part of their work as well. So then you're going to maybe see some other courts, other supreme courts, really taking a closer look at how they use their own state constitutions and interpreting these issues. And that's maybe we'll maybe push the supreme court. Well, maybe not. Maybe not. And aren't we seeing that spirit and those values in not only constitutional cases, but for example, the J.B. Nutter foreclosure case, where the court found that the actions of a lender who clearly wrongfully, unethically, dishonestly dispossessed a wonderful Hawaiian gentleman from his home by means of a reverse mortgage and their twisting of a repair provision for which they were holding twice the amount necessary to make the repairs. And he did make repairs before the case was over. But they used all that to basically take his home from him, render him homeless. And Justice Rectonwald, one of, I believe, if not the best supreme court justice in this country, stood up and got a unanimous opinion, wrote a unanimous opinion, basically not, he couldn't give him back his home. It had already been sold. But he said this was fraud on the court. It was wrongful foreclosure. And the only question is the amount of damages to this unfortunate gentleman that is standing up for the people and the value. That is, to me, very consistent with Justice Eddon's constitutional opinion. And what I believe, Justice Brown Jackson, Justice Sotomayor, and I hope Justice Kagan will continue to urge and press. They may not awaken any of the right-wing colleagues on there. I don't know that there's much to awaken. But what pathways, Avi, Troy, Sandra, Louise, do you see toward countering that pernicious and dishonest and unethical trend of those six majority right-wing justices? One of the reasons that Louise is such a very successful lawyer is she keeps quiet most of the time. I'd like to hear what Louise has to say first. Oh, no. I was hoping to hear from you folks. Well, I think it does show that the importance of state supreme courts and state law remains critical. If we're not going to be able to depend on the Supreme Court of the United States, then change has to happen at the more local and state level. And that includes voters and education. A recent example of two things that come to mind is that even our red states, we cannot write off. I remember hearing an interview by Representative Marcus Flowers, I think on Stephen Colbert about Florida and being a Democratic representative in a red state, and he goes, it's not all red. There are pockets, there are movements, and there are progressives in there that are working towards increasing their influence. I was just at a National Asian Pacific Bar Association conference in Indianapolis. And I have to say, it exceeded my expectations because, one, I decided to go to Indianapolis because I figured, when else will I ever go there? Why would I want to go there? But I thought it was just really reaffirming what they did is they decided if we're going to be in a red state, and there were talks about boycotting that venue, and it was a very controversial decision, then we got our Asian American partner involved there, and the planners really made a point to reach out to Asian American LGBT communities and get them involved in the programming and make them feel like they're not alone, that they have allies and build coalitions, and sort of the informal theme would show up. And every plenary session dealt with LGBT issues, LGBT speakers, and just that whole effort to educate and make people feel like, yes, there are good things happening, that there's good things happening in the next generation, and there are ways that we can support progressive and civil rights in our country, despite all this discouraging news and the childish behavior going on in Congress. Very true. So Sandra, how do we connect what's happening in the courts with that kind of solidarity that Louise is just talking about? Well, I have to agree, I think it's happening. It's just that we're not aware of it, we don't get to see it. And I think that's kind of how we operate in terms of how media promotes things. You have to sort of be in these kinds of conferences so you can really see what's happening on the ground. I think that's happening in a lot of communities. I mean, just look at Ohio, just this last issue with regard to abortion. We're all hyped up thinking, yes, it's going to be this, and then it turns out to, why don't we ask the people and they come up with something very, very different. So I do believe in that process and I believe that on the ground, that is what is happening. We tend to focus on national media and particularly people's perspectives. When there's some wisdom within our communities, there's wisdom in our law school. I didn't go to Richardson, but I'm really proud to see what comes out of there. I sat out on the bench for many years and so many of the graduates that are coming out of that law school are really making the statement of what the intent of the school was when CJ Richardson envisioned what would be taking place in our state and they're really doing that. And I'm particularly pleased to see that, hopefully that's happening in other places as well. So I remain hopeful, Chuck. I'm remaining hopeful in this generation to come in the wisdom of just smart people all around. They're there, they don't need to come out and they're not coming out and making speeches, but they're there and they're doing what they need to do in their communities. Yeah, no. For me, Chuck, it comes down to education. It comes down to elections, like voting, and it comes down to getting all of this starting with kids, working on civic education efforts to get kids involved in understanding things like the rule of law, getting law students to understand the importance of participatory democracy, getting them to understand the rule of law, getting them to understand the nuances, getting them to understand history. Because what's happening at the US Supreme Court, it actually did kind of happen overnight, but it was a long process that was plotted out over decades. You had three justices all of a sudden show up on the court within a matter of a few years, but this wasn't an isolated thing. This was a well-constructed strategic effort to change things from the top down. And so I think focusing from the bottom up and focusing on kids and getting kids the resources, the education they need, particularly in civics is, for me, is I think the key. And Troy is a great exhibit A for exactly what he just talked about. So Justice Sotomayor was asked by Irwin Chimerinsky to Dean at Berkeley, basically the question of how do you keep going. And she said, people have died for these rights. People were beaten for these rights. It's not open to us not to fight for them. And she said further, I agree that the arc bends towards justice, but sometimes it bends very slowly. She said it was 100 years between Dred Scott and Brown versus Board of Education. So you got to not expect immediate victories. It's the long game. So which groups and institutions like the National, Asian, I'm sorry, the National Association, Asian, American? Napaaba. Yeah, Napaaba. Yeah. Which groups and institutions offer the best vehicles, resources, motivation, values to lead this consolidation, this solidarity is coalescence and coalition. So I can give one example. Again, a shout out to the Hawaii Supreme Court. They created a commission to promote and invent civic education. And so this was, and ironically, it was created the day after the January riots, 2021 riots at the US Capitol. But it was created to push out efforts to schools for civic education. So for me, I think that's one natural connecting it back to sort of our progressive Hawaii Supreme Court, right? There are on top of these things and trying to get out there. So that's one organization. Yeah. And courts are doing a great project. I've gotten to participate in that. Getting into those classrooms with the high school students who are really both the soil and the plants, the flowers that are going to generate the nutrient for that solidarity, for that movement. It's inspiring, really. Actually, it is. That was one of the things that came out of the racial equity series at the Supreme Court put on as well a couple of years ago. And that was one of the things that was really emphasized was working with young people, having programs in high schools. And so the court has done that as well. They do their hearings in high school sometimes. So and around the island. I think that's an important thing for young people to see for this institution that we revere and we regard so highly for it to be open to relating to the young people, to high schoolers. I know when I was coming along, that was just unheard of. I mean, that would never have occurred in Illinois. In Chicago, I don't think we'd ever see this. Or maybe out of time. But Louise, last words. Well, I think that goes, what Troy said goes to the importance of judiciary, not just as arbiters of a case, but just being able to advance initiatives for social justice. The state judiciary has done that. In federal court, we're seeing judges like Leslie Kobayashi promote educational programs on civil rights in history. So I think that those are bright lights. I have any last words? Well, I don't want to leave out my chance to brag about the law school. We do a lot of programs and one of them, which has not been much publicized, is every summer, we have a free justice or camp free for public high school students from lots of different high schools. And within one week, they learn enough to put on a quite presentable trial themselves. And we have a lot of involvement with that from our faculty. We give them a free lunch. There is such a thing as a free lunch. Troy, last words. Thanks for putting this together, Chuck. This was a great conversation. I would just love to again send a shout out to our Hawaii Supreme Court. We got, I think, two more justices coming up. I don't see any issues with the confirmation, but we're going to have a full court, full steam ahead ready, I think, to do some really awesome work for us. And we in Hawaii should be really, really proud of our of our state Supreme Court. Yes. Absolutely. Absolutely. You know, and that's maybe a good place to wind up. And I want to, and I think it's appropriate to mention them by name. And I have to admit to being a little too depth because in visualizing each of them, the spirit, the heart, the conscience, the values each of them brings is impeccable. It's just it's pinnacle level. Chief Justice Rekramal, in my view, the best in the country. Justice McKenna, Justice Eddons, Justice Devons, Justice Genoza. I would not trade any of those five for anybody anywhere else. They are that commendable, that admirable, and that believable and trustworthy. Thank you all for contributing to this and honoring them, the spirit, the values they bring and share with us. And you do in your classes, Louise, in your work, Sandra, in your writing, and hopefully, to some extent, in my mediation. Aloha, thank you all so much. Aloha. Thanks for pulling us together.