 We'll start off by reminding people this is funding time of the year for Think Tech Hawaii. We depend on donations and contributions. So any of you who are viewing and like what we do, feel it has some meaning and value and are motivated to contribute, please go to thinktechhawaii.com and whatever you're willing to share to help us keep doing what we do is most appreciated. Well today we have with us Tina Patterson in Germantown, Maryland. You have gone over a year now without putting you in New Jersey by mistake. I still can't figure out how I did that. But you know, another senior moment. Tina's a mediator, arbitrator, business coach and consultant and experience entrepreneur as well. Ben Davis, professor emeritus from the University of Toledo School of Law and now visiting prof at Washington and Lee School of Law and past chair of the American Bar Association section of dispute resolution. And spend some time living in Europe and practicing in France and with the ICC and others. And Troy Andrade of the William S. Richardson School of Law of the University of Hawaii. And welcome all of you, Troy, for the first time and hopefully not the last. Hopefully we don't scare you away. And we can thank Troy for today's topic, which is where the Supremes take some liberties with history and dispense with some liberties under the Constitution all at the same time. Not necessarily a goal for the highest of our federal courts. But then again, who else has a national Supreme Court with a justice who's been on there for a good number of years and who is himself a yeah, let's see. I think we can say a justice whose politics have influenced a lot of his thinking and writing. So Troy, you want to start us off with examples of where the US Supreme Court gets it wrong on history, just to try and get it into a place where they want on politics? Sure. Well, thanks, Chuck. And it's my pleasure to be here on your show and to talk story a little bit. A lot of my research deals with legal history in Hawaii specifically. And my work really started off looking at a couple cases. Some of the larger cases where Hawaii has kind of had an impact on jurisprudence across across the country. And so I first started looking at the rice versus kaitano case, which was a case where a Caucasian man named Freddie Rice filed a lawsuit against the state of Hawaii because he who was a descendant of many generations of individuals who've lived in Hawaii but who are not indigenous Native Hawaiians, but he filed the lawsuit because he could not vote in the election for a state-created entity called the Office of Hawaiian Affairs. And that organization's goal and priority was to ensure the betterment of the condition of Native Hawaiians. The thought when that agency was put together was an agency that was created by for the Native Hawaiian people. It was an agency where the folks who could elect the trustees of this entity had to be Native Hawaiian and you need to verify you were Native Hawaiian in order to vote. His lawsuit gets dismissed at trial court and then at the Ninth Circuit when it makes its way all the way to Washington D.C. and the U.S. Supreme Court, you have the Rehnquist Court that's you know the sort of traditional Rehnquist Court that was in power for a long time and they under Justice Kennedy write a decision that basically strikes down the election provision of the the statutory scheme that created this entity saying that it violated the 15th Amendment. Fortunately, they avoided the 14th Amendment issues in that decision, but if you read the history of Hawaii that Justice Kennedy puts forward, if you're not from Hawaii and don't understand Hawaiian history, it's no surprise that Justice Kennedy and his colleagues that agree with him come out with the decision they do. Justice John Paul Stevens famously calls it these glittering generalities in his dissenting opinion that the Kennedy opinion sort of goes through. So things that, again, to someone without knowledge of Hawaii who's never been to Hawaii who doesn't understand Hawaii's history, hearing this from a court, hearing this history from a court, you're going to take that as a history, a legitimate history of this place. What Kennedy does is he cites to authorities that we know are biased authorities on history. He cites to books that were written specifically to advance the project of Americanization in Hawaii. Despite having from amicus briefs verified histories of Hawaii, he still, and this is where Justice Ginsburg and Stevens in their dissents sort of go to, he's still painting a picture of native Hawaiians and Hawaiian history that's very distorted from what actually happened. So things like identifying that native Hawaiians didn't live in an idyllic life before Western contact, small things like that, identifying that native Hawaiians practiced a polytheistic religion. How is that important to his decision about elections? I don't know, other than to at least I think paint native Hawaiians as different as other, as people who needed Western influences. And so if you look at case after case that gets before the US Supreme Court, because of this rice decision, you now have precedent that other courts are citing about Hawaii's history, a history that wasn't vetted by courts below. This is just the Justices looking at books and citing to books for a narrative of Hawaii's history that now gets cited over and over by any case from Hawaii that makes its way up to the US Supreme Court. So it's damaging first initially at the level of the case itself, but has had significant repercussions for the advancement of Hawaiian claims on the federal side, because of the way this history now becomes pseudo precedence for a narrative of history of my homeland. No, I mean, yes, I hear you. I hear you. I mean, it's, I mean, you can even see it in oral argument, right? Okay, like, there's, I was just listening to NPR and, you know, they're playing some of these hearings on the UNC and Harvard oral argument that just happened. And apparently, like, just as Thomas comes out of the gate saying that I understand what this word diversity means, you know, and I'm like, really? I mean, I felt like we need Rodney Dangerfield arguing in front of him, you know, and could say, well, why don't you take a look at the nine here? Okay, let's take a look at the nine. There's four women over here. There's five guys over here, you know, a couple of black ones. Hey, you know, I mean, I was like, really? I mean, seriously, dude, and you go back to pre 67, it was like nine white guys. Okay. Okay. So that's diversity. I mean, you know, I mean, really, that's the way it felt when I was listening. And then, you know, I loved his Alito on Dobbs, right? You know, the history of quote, unquote abortion in the United States. And I'm like, yeah, he's going back to the 13th century. And, you know, there's just one problem, which is that, gee, I don't think women had the right to vote until 1920. You know, so everything three 20 is like this man made stuff. And I literally mean man made, you know, and that he's like citing to it. And I'm like, plus he gets it wrong, according to all the historians, too. So, you know, you're like, really, folks? Just just pitiful, pitiful. And it gets in it just sits out there and people, you know, eat it up like ice cream, like that's reality. Yeah, it is a reality. And it's a whole political game, right? I mean, if you say it as legal politics of, we are going to tell the history, the way it works for us, as opposed to, I mean, there's other places where it's absurd, like, there's this case called, I believe it's called Kyable. And there was a question about where various piracy happened, because piracy was one of the grounds for human rights or international law to apply. And, you know, in the dissents, they point out to the majority that, you know, piracy doesn't actually happen on the high seas. It happens on boats, you know, you know, they and those boats carry flags and those flags are the flags of the countries that the boats are flying under that flag and under their jurisdiction. So piracy was also always about concurrent jurisdictions, you know, but they, you know, it's like, really, I mean, really, do I have to take you to a Johnny Depp movie for you to see a boat at the Supreme Court? I mean, it's insane. You understand, I look at this and I say, you people are insane, you know. And I'm sorry if that doesn't sound nice, but you know, you look at it and you're like, am I hallucinating? I mean, and what you're describing, are they hallucinating? I mean, we're doing their research, you know, and then all the great clerks, you know, they're super clerks who are supposed to be amazing and all that. Really? This is the research they do. It's just, it's pitiful if it wasn't dangerous. So, Tina, your turn. Who gets hurt by this distortion of history and politicization of decision-making? Who's history is the victim of this? And we all get hurt. Not all of us have the great fortune of being legal scholars like Choi and Ben that are here for the average person. And the narrative that they hear is the last resort, the last, the final product. And it's interesting and fairing for tonight. I actually went to look and see if there were any particular articles I could look at. And interestingly enough, I came upon a speech that Justice Breyer delivered to the Supreme Court Historical Association, and he actually talks about all the cases that probably everyone in public, I shouldn't say that, most people will remember is the Dred Scott case. And it's, again, I think there's a parallel between Dred Scott and what we see today. And that parallel is how politics impacts decision. And I am going to admit my ignorance. I didn't realize that there were three dissenters in Dred Scott. I thought it was a unanimous vote. So again, history, the impact. Benjamin Curtis, I never knew about until about 20 minutes ago. And I thought that's interesting because even growing up hearing about constitutional laws and how certain laws came to place, especially Dred Scott and how the separate but equal ended up impacting U.S. history or U.S. engagement in the U.S., I'll say even up to today, I'll somewhat argue with that. But again, it becomes this, it's Roger Taney, Dred Scott. It's horrible. Here's the reason why. Without understanding, there were three dissenters. And he actually, and he I'm referring to, is Justice Breyer that talks about five lessons that I think are still applicable today. And that's how, unfortunately, we would like to believe that the Supreme Court is going to operate based on what the Constitution says or does the Constitution has been amended. Instead, we're seeing a reflection of morality or attempt at an application of morality to the law. And more often than not, it fails. And we saw that with Dred Scott. And this is where we see the three dissenters coming in. So yeah, we all we all suffer because I think it's it becomes this political maneuvering and sometimes trying to be original when our original is is literally not looking at the historical practice. But what does the Constitution actually provide in terms of guidance and direction? Well, and the other points that you all make, and that's particularly cogent in this time of violently destructive disinformation is that these distortions of history that were not accidental, these are not situations where they only got one side of the picture. And so that's how it looked from the perspective they were given that as Troy and you and Ben have pointed out. And as we know from Justice Katanji Brown Jackson's first week on the bench, the first thing she did that week was to take her time and teach Justice Alito and the others a really direct basic lesson on this is the history of the 14th and the 15th amendment. These are not race neutral statutes. These are racism corrective statutes. And you have to understand the history to understand why that corrective action was made. To fail to understand that history is to fail to understand why separate but equal could not be acceptable because of that historical injustice and perversion of it. That the separate would not and had not ever been equal. So where do we go from here to get back on track, Troy? Well, I would say that, you know, it's, you know, these types of issues get at the heart, I think of the legitimacy of the court, right? And if they don't take make us really sincere efforts to address these things, the legitimacy of the court is going to continue to erode in a very, very dangerous way that's going to be very detrimental to our the rule of law, right? And our community as a whole. I think the thing that really made me frustrated when I went through and looked at the briefings for the rice case and listened to oral arguments is that they willfully wrote this history despite having evidence and different narratives of it, right? So this was like a clear selective use of history to tell the story the way they wanted to tell the story, right? So I can in 2022 now, you know, look back and say, oh, back in the year 2000, maybe they didn't have that information in front of them that we now have 20 years later. That argument doesn't fly because they totally had that information back then and deliberately chose, I mean, I'm assuming that when you're a justice and you get amicus briefs, your clerk's going to read through them and the justice is going to read through them, right? That is not even mentioned in in the majority opinion, right? And that to me signifies a deep problem. Now this was two decades ago, right? But this sort of thing is still happening. The debate on originalism, right, gets back to the debate about what happened. What were these men saying back in the day in when they founded this country, right? That is still an active debate. And if you look at the Dobbs case and other cases, more recently, you're going to see that they are selectively choosing whatever history they want to push forward their political ideological views on the issue that's before them. And that's very, very dangerous. And, you know, I'm going to use my time as a law professor to continue to speak out and check sort of this conduct that happens at this particular court, right? At the U.S. Supreme Court. Interestingly, the Hawaii Supreme Court, when dealing with Hawaiian issues, tells a very, very different story about Hawaiian history, right? And so why the U.S. Supreme Court can't, you know, just, you know, excite to and copy and paste this history that the Hawaii Supreme Court says about our people? I don't know. They just choose not to, right? And that's the dangerous part that I think we, as a collective, have to be willing to push back on. Well, and as you say, they clearly did that in Dobbs as well, because they received dozens of briefs, including amicus briefs, that set forth the history that showed the evolution of the protection of women's reproductive choice and its connection with a right to privacy that became a constitutional, phenomenal right. And now we've seen it again in the affirmative action cases where, oh, my goodness, when one of the more experienced justices gets up there and says, diversity? I don't know what that is or what value it has. How could they have read or had their clerks read and summarize the mountains of amicus briefs that laid out the history and the reasons for affirmative action and the fact that in states that have outlawed the consideration of race in college and university admissions? They have seen decreases in the diversity and the representation of the same groups that were intentionally excluded before. That historical exclusion mechanism still operates if you don't take it into account with all the other factors in making your choices. Yeah, or even just reading some literature. I mean, you know, like if you read William Faulkner, right? He said the fastest is never dead. It's not even past, right? I mean, that's a pretty good member of the canon. If I could say it like that, that would be an accepted member of the canon Nobel Prize, literally, that really captured that, you know, how deep that history is. You know, I live in Virginia and when I've moved here from Toledo, Ohio, I wanted to visit a couple of places where I had ancestors, right? And when I'm driving around, and I think this may be something that native Hawaiians feel in Hawaii, but when I was driving around, you know, I feel in my mind, I see people running through the woods away. I see horses chasing them. I see bloodhounds and hear bloodhounds running through those woods here to let today into Toledo and travel to Virginia when I'm around. I mean, that that history is so, so clearly here. And yet, when you get these kind of weird Supreme Court, I was thinking just elitist kind of history, which is basically sort of, I don't know, if you were in a very fancy club, how people would sit around with cigars and with mustaches and all that and say, no, those people, you know, that kind of thing. I mean, but it's a Supreme Court in 19, in 2022 kind of history. I mean, it's so appalling, you know, and I, you know, it's not real. Well, it's real, but it's not true, you know. I don't know. I think it's a failure of judicial rhetoric. I mean, everything that's been described so far is a failure of judicial rhetoric, whether it is Justice Thomas asking the question regarding diversity. Are people really going to listen to anything that he has to say beyond this? Because this is how he's framing his argument. What is diversity mean? And, you know, some of us may chuckle, some of us may really, you know, like me suck my teeth and say, really. But at the end of the day, it's the rhetoric that's being put forward. And our expectation is to really come forward with a thoughtful intentional presentation or argument, whether you are for or against what's being presented. And instead, what we're getting is the equivalent of a comic book, bubbles, 20 second, 30 second sound bites. And was that statement from Justice Thomas really necessary? Again, I go back and I think about this presentation that I had read regarding Dred Scott. And again, it's the language. It's the language to use, and it's what people will remember, which is what you asked earlier. But again, it's a failure to use a rhetoric of a reasonable, rational person. Well, and that points to a failure of dialogue itself. The exchanges that used to characterize the Supreme Court, even when there were differences, there was a level of mutual respect there. Those are gone. When you move from five, four, where you have to pay attention to what the others are thinking or arguing or putting forth, because it could make that one more difference. When you move to six, three, and it's lockstep, and it's got a political right wing, ideological unity and conformity to it, that will disregard history and facts. You don't have to pay attention to that dialogue. What do we do to bring the dialogue back to the Supreme Court and the courts generally, the appellate courts? I'll just jump in first. I mean, I think there are, we really have to think about the ways in which history can be used in the court system and the ways in which we have to ensure some verification of some process to ensure that what the court is saying on these larger issues. If this was a tort claim that made its way up to the Supreme Court, obviously there are evidentiary issues that you have to prove. The facts have to be proven by evidence. These larger questions of what happened in Hawaiian history, what happened with slavery, what happened with the removal of Native Americans, what happened during the incarceration of Japanese Americans. These questions, you don't need evidentiary proof. The court can just make up its own narrative, and that can change right from court to court to court. There have been proposals on mechanisms to try to address that. I don't know if that, if those proposals are going to be successful, if the players involved are not willing to actually engage in bringing the court away from being highly political to a neutral. I don't know that there's that willingness on the bench to do that. Well, and we look also at the people who are bringing these distortions of history in order to go back to historical systemic injustices. And sorry, but it's the same groups. It's older white men, whether it's the affirmative action guy or the Dobs people or the others. These are the same people. Well, yeah, I mean, you know, I personally really enjoyed the oral argument by Nameless Prildegard, who was talking about the service academies when she was really pointing out there, you know, the military's recognition of the fact that it was screwed up and it had to do something to diversify the officer corps, you know, all those things that she was just laying out. It was like I was listening. And she said at one point, I mean, one of the things about diversity is, well, you know, this term, you're going to have 27 people who argue in front of you, only two of them will be women. You know, and I was like, yeah, yeah, what about that? I mean, we have to, let's get back to reality here, as opposed to, you know, sort of, sort of abstractions that in fact are not abstractions, they're just obfuscations, if I'd like to say it like that. They're, they're, they're, they're incantations that make us not see sort of, sort of what's in front of our eyes. You know, the old, the country song, you're going to believe me or you're lying eyes, right? You know, that kind of moment you have all the time. I mean, let's just take a really simple one. There's a statue of John Marshall right in the entrance to the Supreme Court, right? Big statue, big and black, on marble, all that stuff. You know, in all my life until about a year or two ago, I didn't know that he owned slaves, you know? And I was like, here's this huge statue honoring John Marshall, you know, Marbury Madison, he owned slaves. And then you can look at sort of the whole history of, I think recently was said that there were at least 1800 members of Congress who actually owned slaves during slavery, you know? You know, these things are like obfuscated. We don't know them, right? But then when you hear them, they change how you see things, you know? The kind of history that you're describing Troy, you know, when you hear it, it changes that whole image of what you're going through and walking around Hawaii if I ever get there. I'm trying to, you know, I mean, I have a family that live there, you know? But I listened to Senator Inui once do a three-hour presentation about his life, where he talked about being a wine islander and going to fight in World War II, right? And the things that he talked about were just amazingly deep and complex that like his mother lost her U.S. nationality under the 1924 Immigration Naturalization Act from Japan, you know, and that it hurt him his entire life. That was just something I really didn't have a way into. But all of a sudden it was not, it was like a truth, a reality that gets lost in the wordplay if I could say it. And that brings us back in our last minute to the point that you made at the beginning, Tina. It hurts us all to disrespect the history that has systemically mistreated some of us. And it doesn't benefit those who work so hard to try and protect it. Any last thoughts, Troy? I just wanted to tell you thanks for this conversation. This is really, I think, the start of a nice many more hours' worth of conversation I think we could have, we could have about this. But, you know, I hope folks listening out there really do, you know, when these issues come before any court, really question, right? And really think about where this information is coming. Look at the citations to see who it is that these people are citing to, right? And be just more cognizant about history in general. And it's used by the courts. Tina, any last thoughts? Paul from George Santanaia comes to mind. Those who do not learn from history are doomed or repeated. And to victimize others by doing so. Ben, last words? Just keep the faith. Keep the faith. Thank you all for joining us at Think Tech Hawaii. Support us if you can. And come back and join us. We'll be back in a couple of weeks. And donate to us at ThinkTechHawaii.com. Mahalo.