THERE seemed to be some hesitation by the state Supreme Court when it recently ruled workers compensation rights include public employees stressed from disciplinary actions. Hawaii Supreme Court
reduces its reachThe opinion written by Chief Justice Ronald Moon in effect told legislators: Look, fellas, that's the way you wrote the law. We only interpret it. Fix it if you want.
That's quite different from years of Supreme Court decisions that dove into new and often murky waters using the written law only as a springboard to declare new law:
Examples:
Finding a state constitutional right to same-sex marriage.
The last two examples well precede the present court. They show we have had decades of judicial law-making and finding of rights.
Justice Steven H. Levinson wrote the same-sex marriage opinion. Robert G. Klein wrote the gathering rights decision. They were able to carry a unanimous court with them.
I wonder if they will have similar latitude in the future. Maybe the ruckuses thus stirred are causing the court to reconsider its role.
Chief Justice Moon asked to be allowed to address the Legislature this year, an unprecedented event. He stressed the court is only part of a team of which legislators and the governor also are parts. He showed friendliness, humility and workman-like concern about particular problems. But that didn't keep the governor from sending judges some kind of a message by vetoing their pay raise.
If we should be headed for more judicial restraint locally -- and I hope so -- we will only be following a trend that some observers see in the U.S. Supreme Court.
In 1973 an activist U.S. court looked into the U.S. Constitution and found that abortion is an inalienable female right. This year it looked again. It unanimously couldn't find any inalienable right to doctor-assisted death even though two appeals courts had spied it.
The nine justices unanimously reversed both appeals courts. They upheld New York and Washington state laws forbidding doctors to assist suicides. They also, however, made it clear that if some states approve doctor-assisted death those laws may be upheld.
They decentralized power over life and death. Justice Sandra O'Connor spoke of working things out in the laboratory of the states. Justice John Paul Stevens noted that the court already has approved the taking of life in capital punishment cases.
The U.S. court also restrained Congress. It found no legal justification for Congress to impose on states the burden of enforcing the Brady gun control law without giving the states any money to do the job.
SLOGGING for change law-by-law and state-by-state seems more in the tradition of the founding fathers. It might not have been adequate, however, to end separate-but-equal racial segregation, nor to dislodge state legislatures from well-entrenched discriminatory apportionments. Some overreaching may serve the common good, but it should be infrequent, not common.
A big problem with a court discovery of an inalienable right written in invisible ink behind or under some other federal or state constitutional right is that such rights, once declared, are pretty much immune from tinkering. It seems pretty audacious in any event for only five of nine U.S. Supreme Court justices to be enough to "write law" governing 260 million of us. The same goes in Hawaii, where a three-member majority is enough to "write law" for 1.2 million of us. The "new thinking" seems more in tune with ending the era of big government knows best.