Chad Blair: Two Hawaii Supreme Court Justices Are Speaking Out - Honolulu Civil Beat

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About the Author

Chad Blair

Chad Blair is the politics and opinion editor for Civil Beat. You can reach him by email at or follow him on Twitter at @chadblairCB.

Recent written comments on the U.S. Supreme Court and a speech on climate change tell us more about our state’s highest court.

In a ruling Oct. 31, the Hawaii Supreme Court rejected an effort to snuff out a lawsuit that alleges major oil and gas companies deceived the public about climate change.

The unanimous opinion allows the case against Shell, Chevron, Sunoco, ExxonMobil and other defendants to move forward to trial.

The 2020 lawsuit is remarkable for a number of reasons, including that it comes courtesy of the City and County of Honolulu and the Board of Water Supply. It places Hawaii very much at the forefront of growing legal challenges against Big Oil at a time when experts say the planet is warming at an alarming rate and contributing to disasters such as the Maui wildfires.

“Defendants knew of the dangers of using their fossil fuel products, ‘knowingly concealed and misrepresented the climate impacts of their fossil fuel products,’ and engaged in ‘sophisticated disinformation campaigns to cast doubt on the science, causes, and effects of global warming,’ causing increased fossil fuel consumption and greenhouse gas emissions, which then caused property and infrastructure damage in Honolulu,” Chief Justice Mark Recktenwald wrote in the 82-page opinion, in which he quotes directly from the plaintiff’s claim.

Chief Justice Mark Recktenwald speaks before Governor Ige signs the Juneteenth bill into law at Washington Place.
Hawaii Supreme Court Chief Justice Mark Recktenwald authored an opinion last month allowing a lawsuit against fossil fuel companies to proceed. (Cory Lum/Civil Beat/2021)

The court rejected Big Oil’s argument that the lawsuit seeks to regulate emissions or interstate commerce, something that can only be done at the federal level.

“We hold that Defendants are subject to specific jurisdiction in Hawaii,” Recktenwald wrote.

We’ll be hearing a lot more about this lawsuit and others in the months and years to come. But the “Honolulu vs. Big Oil” opinion is remarkable for another reason, one that received little attention: the concurring opinion by Associate Justice Todd Eddins, which has some folks in local legal circles scratching their heads and others expressing halting admiration.

The opinion included Eddins’ admonition that the U.S. Supreme Court “could use a little Aloha.” More on that in a moment.

‘Enduring Law Is Imperiled’

A concurring opinion is when a justice agrees with the majority opinion but does not necessarily agree with the reasoning behind it. In the case of the Big Oil ruling, Eddins began, “I agree with the Chief Justice’s well-reasoned opinion.”

But Eddins then proceeded to take a far different tack, one that references the landmark 14th Amendment of 1868 on due process and equal protection and then identifies a number of recent SCOTUS decisions with which he strongly dissents.

What Eddins is arguing is that the high court, where the Big Oil case may very well end up, has based its decision-making process on outdated arguments and political bias rather than established precedence and judicial independence.

“Enduring law is imperiled. Emerging law is stunted,” Eddins explained. “A justice’s personal values and ideas about the very old days suddenly control the lives of present and future generations.”

The U.S. Supreme Court. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Fred Schilling, Collection of the Supreme Court of the United States)

The associate justice points to two cases where those values and ideas have come directly — and disastrously, in his view — into play. They include Dobbs v. Jackson Women’s Health Organization, the 2022 ruling that concluded the U.S. Constitution does not protect the right to abortion.

Eddins described the ruling as one that erases a constitutional right, recalls a woman’s autonomy and empowers states to force birth “for one reason and one reason only: because the composition of this Court has changed.”

It is the conservative 6-to-3 court that has drawn his ire, the one made possible by former — and future? — President Donald Trump.

Eddins also cited another 2022 ruling (New York State Rifle & Pistol Association Inc. v. Bruen) that struck down a public carry law in New York, thus casting doubt on gun control laws nationally; and another decision that same year (West Virginia v. EPA) that limited the scope of the Environmental Protection Agency to regulate carbon dioxide emissions.

Judge Todd Eddins nominated by Governor Ige for the Hawaii Supreme Court. October 23, 2020
Associate Justice Todd Eddins. (Cory Lum/Civil Beat/2020)

I can understand why Eddins is upset about the SCOTUS ruling on climate change. The Big Oil case is fundamentally about an island state’s right to fight for its survival.

But what do abortion and guns have to do with Hawaii — other than the fact that we strongly uphold the right to choose as well as regulate gun control?

Eddins also takes issue with older decisions like the 5-4 ruling in 2010 that determined the First Amendment allows corporations to be deeply involved in political campaigns (Citizens United v. Federal Election Commission), and Shelby County v. Holder, the 5-4 ruling that determined that part of the Voting Rights Act of 1965 is unconstitutional.

Here’s what I think: Justice Eddins is very angry and is raising his middle finger to the six of nine justices who preside above all others from their privileged bench in Washington, D.C.

‘The World Is Heating Up’

Eddins language is unusually personal for an official court opinion.

“Sharper minds than mine deep dive and debate the tugs between originalism and other interpretative modalities,” he writes. “I’m just a state judge who respects and admires the federal constitution’s open-textured, freedom-and-liberty-inspired language.”

But he is clearly upset that the views of a “few white men who made laws and shaped lives during the mostly racist and misogynistic very old days” live on. Those views constrain contemporary judges like himself.

“I fear the Court self-inflicts harm, loses public confidence, and exposes itself to real criticisms about its legitimacy,” he writes.

At the end of his nine-page opinion Eddins cited the Hawaii law on the Aloha Spirit (excerpt: “Each person must think and emote good feelings to others”) and quoted Mary Kawena Pukui’s translation of a Hawaiian proverb: “A humble person walks carefully so they will not hurt others.”

I doubt very much that Clarence Thomas and Samuel Alito will walk any more humbly should they read what Eddins has to say. Justice Eddins himself declined to comment for this column, which is common practice for judges and justices when it comes to court rulings.

It is also unlikely that other Hawaii attorneys will speak out for or against what Eddins wrote, because they may well have business before the Hawaii Supreme Court.

Sabrina McKenna, associate justice of the Supreme Court of the State of Hawaii.

And yet, one of Eddins’ colleagues did speak out publicly about climate change. During an Oct. 26 lecture at the University of Colorado Boulder Law School, Associate Justice Sabrina McKenna called climate change an “existential threat” and “the most important issue” facing courts.

“The world is heating up. If we get to 3 degrees, most of Honolulu is going under water,” she said. “Miami is going under water. Rio de Janeiro is going under water. I think New Orleans … Bangladesh will become uninhabitable. There’s going to be hundreds of millions of people migrating, climate migration.”

McKenna’s talk was reported on by the right-wing The Daily Caller, which noted with a hint of snark that Hawaii’s Revised Code of Judicial Conduct states that, “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court or make any nonpublic statement that might substantially interfere with a fair trial or hearing.”

McKenna did not respond to the Daily Caller News Foundation’s request for comment, the article says.

I admire Eddins and McKenna for having the courage to speak up on the most important issue of our era, even if their words may make their day jobs more challenging.

And I close by noting that the Big Oil ruling was co-authored by two people who are filling in for the vacancies on the five-member Hawaii Supreme Court. The Senate Judiciary Committee will consider Gov. Josh Green’s nominations for the associate justice positions next week.

Their views on climate change — is it real or a hoax? — might well come into play.

Read this next:

Naka Nathaniel: The Agony Of Reading Real Estate Stories

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About the Author

Chad Blair

Chad Blair is the politics and opinion editor for Civil Beat. You can reach him by email at or follow him on Twitter at @chadblairCB.

Latest Comments (0)

greenhouse gas emissions, which then caused property and infrastructure damage in HonoluluAre we talking about green house gasses or gamma radiation? Infrastructure damage? Tell me we're not blaming sea level rise (the only thing I see in the news for nature-borne infrastructure damage) on oil companies. Oh wait, I remember now, all the plastics in the ocean preventing phytoplankton from recycling carbon is because of . . oil? . . . no . . . it's not.

Dan · 3 weeks ago

Real vs hoax are not the only two opinions on climate change, and treating it as a binary does a disservice to the debate. It's also possible climate change is real but also being blown out of proportion by influential people who want to use it for scams and power grabs.

NoComment · 3 weeks ago

Justice Eddins was one of few excellent appointments by David Ige.

CPete · 3 weeks ago

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