A State Supreme Court Justice Decries the "Horrors and Treachery" Coming From SCOTUS [View all]

[Nevilledog]

https://slate.com/news-and-politics/2024/05/supreme-court-justice-second-amendment-originalism-fake-history.html

Perhaps no lower court judge has condemned the U.S. Supreme Court’s reliance on bogus history and racist values as sharply as Hawaii Supreme Court Justice Todd Eddins. In several scathing opinions, Eddins has decried the conservative supermajority’s radical reversal of settled precedent in the name of a conservative theory, originalism, that’s both dangerously retrograde and totally unworkable. In Tuesday’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern interviewed the justice about his very public criticisms of SCOTUS and his embrace of state constitutionalism to limit the fallout in Hawaii. Their conversation has been edited and condensed for clarity.

Mark Joseph Stern: You’ve written very powerfully that judges are not historians. And yet it seems that the U.S. Supreme Court is calling upon all lower courts to play the role of amateur, dilettante historian. Can you talk about some of the practical problems with that?

Justice Todd Eddins: In a wonderful opinion, a federal judge wrote that we are not trained as historians—we practice law, not history. And that’s the problem. I think real historians look at the judiciary with shock to see that we think history has such certitude. And we don’t have the opportunity, or even the ability, to weigh into the rigor of historical methodology and historical integrity when deciding cases. How are supposed to decide what is history? Do we outsource it to A.I.? Do we deputize our law clerks as historians? Do we rely on partisan amicus briefs? I don’t want to do that. But it seems like the United States Supreme Court tends to cherry-pick history that way.

Then you run into the problem of Whose history are we really talking about, anyway? There’s certainly a few white men who decided things back centuries ago, when women and people of color were excluded from public participation and deliberation. Their views are nonexistent. So it’s absolutely impossible to try to root around in history and excavate 18th- and 19th-century experiences and try to apply them to 21st-century problems. Aside from being so whacked-out and silly, it’s just not practically possible.

*snip*