In City and County of Honolulu v. Sunoco, et al, No.22-00429, 2023 WL 7151875, 2023 Haw.LEXIS 185 (Hawaii Oct. 31, 2023), the Supreme Court rejected challenges based on lack of personal jurisdiction and failure to state of claim in the City and County’s claim against the oil and gas industry for lying to the public about climate change.
Agreeing with the majority, Justice Todd Eddins concurred, as the principles that govern personal jurisdiction arose after 1868:
“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.’ Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2319-2320 (2022) (Kagan, J., dissenting). The day before, the Court cherry-picked history to veto public safety legislation, disturb the tranquility of public places, and increase homicide. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). The same week, it promoted a conjured idea hostile to judicial restraint – ‘major questions’. When executive branch policy-making grazes disliked policy preferences, major questions ‘magically appear as get-out-of-text-free cards.’ West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting).
“For now, International Shoe still fits. Defendants must have minimum contacts with the forum state such that exercising jurisdiction over them does not offend traditional notions of fair play and substantial justice. But the due process clause mentions neither fairness and justice, nor minimum contacts. And those standards clash with how courts determined personal jurisdiction long ago. See Pennoyer v. Neff, 95 U.S. 714, 733 (1877) (courts lack jurisdiction over defendants who are not physically present in the state or who have not consented to jurisdiction) ….
“Before the Court’s hubristic originalists arrived, everyone got it wrong. Well, mostly everyone. See Dred Scott v. Sandford, 60 U.S. 393, 405 (1857) (enslaving human beings and denying citizenship based on race because the Supreme Court must interpret the Constitution ‘according to its true intent and meaning when it was adopted’). All others, hall-of-fame jurists to 1Ls, held egregiously wrong-headed views. Only public meaning at inception counts. Traditional methods to interpret the Constitution are unacceptable. See, e.g., Brown v. Bd. of Educ. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 492–493 (1954) (‘In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation’).
“A chosen interpretive theory cages the Constitution. Why originalism? To keep value judgments out of judging. To constrain judges.
“Not that judges are always restrained. See, e.g., Shelby Cnty., Ala. v. Holder, 570 U.S. 529 (2013) (dismembering a cornerstone of American civil rights because a few judges made up a textually-unsupported rule that Alabama’s equal sovereignty prevents the federal government from enforcing federal law – a law those judges felt worked too well).
“Inconvenient originalism nurtures views that the Court operates as a political body. For instance, Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), sidestepped text, history, and tradition to invalidate a major law on a question vital to democracy – limitless corporate money influencing elections. Corporations though have never been ‘members of “We the People” by whom and for whom our Constitution was established.’ In 1791, corporations were rare, highly regulated creations of the states and not mentioned in the Constitution. Corporations had privileges, not rights. They did not enjoy the same free speech protections as people. Id., at 428-429, 466 (‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’). And they certainly were not spending silver coins to sway elections.
“Whose history are we talking about anyway? The powerful. The few white men who made laws and shaped lives during the mostly racist and misogynistic very old days. Originalism revives their value judgments. To constrain the value judgments of contemporary judges!
“What about today’s need-to-be-constrained judges? They need to be historians. Figuring out the way things were to govern the way things are. Excavating 18th and 19th century experiences to control 21st century life. How? Relying on partisan amicus briefs, borrowing history books and dictionaries, searching online, using artificial intelligence? As one judge put it: ‘The standard articulated in Bruen expects us to play historian in the name of constitutional adjudication.’ United States v. Bullock, (S.D.Miss. 2023) (Reeves, J.) (‘An overwhelming majority of historians reject the Supreme Court’s most fundamental Second Amendment holding – its 2008 conclusion that the Amendment protects an individual right to bear arms, rather than a collective, Militia-based right”). I fear the Court self-inflicts harm, loses public confidence, and exposes itself to real criticisms about its legitimacy….
“In Hawaii, the Aloha Spirit inspires constitutional interpretation. When this court exercises power on behalf of the people and in fulfillment of our responsibilities, obligations, and service to the people we may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.’ Hawaii’s people define the Aloha Spirit as:
‘Aloha Spirit’ is the coordination of mind and heart within each person. It brings each person to the self. Each person must think and emote good feelings to others. In the contemplation and presence of the life force, ‘Aloha, the following unuhi laul loa may be used:
‘Akahai’, meaning kindness to be expressed with tenderness;
‘L kahi’, meaning unity, to be expressed with harmony;
‘Olu olu’, meaning agreeable, to be expressed with pleasantness;
‘Ha aha a’, meaning humility, to be expressed with modesty;
‘Ahonui’, meaning patience, to be expressed with perseverance.
“These are traits of character that express the charm, warmth and sincerity of Hawaii’s people. It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaii. ‘Aloha’ is more than a word of greeting or farewell or a salutation. ‘Aloha’ means mutual regard and affection and extends warmth in caring with no obligation in return. ‘Aloha’ is the essence of relationships in which each person is important to every other person for collective existence. ‘Aloha’ means to hear what is not said, to see what cannot be seen and to know the unknowable.
“Ku ia ka hele a ka na au ha aha a (hesitant walks the humble hearted). A humble person walks carefully so they will not hurt others.
“The United States Supreme Court could use a little Aloha.”