Guessing at the outcome of U.S. Supreme Court cases is a fool’s errand. Common sense rarely enters into it. When they aren’t being decided by reference to obscure and decades-old precedent, Constitutional cases often hang on things like the placement of a comma, a trial judge’s idiosyncratic turn of phrase or the implications of the word “whereas.”
In fact, yesterday’s ruling in Hawaii v. Office of Hawaiian Affairs turned on that very word. Simply put, the Hawaii Supreme Court had found in 1994 that various “whereas” clauses in the U.S. Congress’ 1993 resolution apologizing for the government’s role in the overthrow of the Hawaiian monarchy barred the State of Hawaii from selling ceded lands. Yesterday, the nation’s highest court ruled that the whereases held less weight than the Hawaii court assigned to them, vacated the ban on ceded lands, and sent the whole argument back to Hawaii to be decided according to state laws. The Supreme Court, in this case as in so many others, acted as the ultimate authority on the definition of a word.
In a larger sense, however, this case was pretty simple, and many Court watchers, both here and on the mainland, saw the Court’s decision coming a mile away. Ilya Shapiro, of the Cato Institute, predicted not only the decision but the Court’s unanimity. That also seemed to be the expectation up at UH’s Richardson Law School, and frankly even as ill-trained a legal mind as this one couldn’t escape the sense, emergent from oral arguments back in February, that not only did all of the Justices who spoke seem highly suspicious of the Hawaii Court’s theory, but so did OHA’s own lawyer. Kannon K. Shanmugam, a former assistant Solicitor General who had never previously lost a Supreme Court decision, spent most of his time backing away from the Hawaii Court’s reliance on the Apology Resolution and sought to argue that the state’s title to the ceded lands was “clouded.” The Justices obviously weren’t buying it.
So now what? Despite all the bombast about the dire consequences for Hawaiians if OHA lost this case, it’s not clear that either OHA’s interests or those of Hawaiians generally will ultimately suffer. Gov. Linda Lingle and the rest of her administration have repeatedly insisted that the State has no intention of selling any of the ceded lands. More to the point, the Court’s ruling encourages Hawaii’s to solve this problem in-house, where public sentiment is highly sympathetic to Hawaiian claims to the ceded lands. There is good reason to believe this question will be resolved definitively, according to Hawaii law, in the near future.
Isn’t that exactly what most Hawaiians—and OHA leadership—were asking for in the first place?