Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.- James Madison, The Federalist No. 47 (quoting Montesquieu).

Having held that the Apology Resolution did not strip Hawaii of its sovereign authority to alienate the ceded lands, the U.S. Supreme Court has remanded the case "for further proceedings not inconsistent with this opinion."

While the state ostensibly won the round, one imagines the administration is nervous about what the Hawaii Supreme Court will do with the case on remand. Of all the courts around the nation, Hawaii's must be one of the least shy about elbowing its way into the policy-making arena and essentially legislating new rules of law. It's an open question (to my mind, anyway) whether the Hawaii court really thought the Apology Resolution foreclosed the state's right to alienate the ceded lands, or whether instead the court found in the Resolution a stepping stone toward the policy outcome it wished to enact.

Of course, the answer will be revealed on remand and it will be interesting to see whether the court disavows its reliance on the Apology Resolution and constructs a new rationale based instead on state law. That is certainly what the OHA will strongly urge. However, the court does not have free range even of state law to announce a legal, or even an equitable, interest in the lands by Native Hawaiians (or by anyone, for that matter, other than the state). Recall Justice Scalia's comment during oral arguments:

JUSTICE SCALIA: As I read the Federal law, it extinguished all property rights in these lands; the lands were transferred to the Federal Government; and the Federal Government transferred them in absolute fee without any encumbrances to the State of Hawaii. Now if you are telling me the Hawaii Supreme Court is now finding as a matter of State law that there is a property interest on the part of the Native Hawaiians --I don't care what you call it, equitable or whatever --it seems to me that is flat contradiction of Federal law, and probably is an issue that we ought to address in this opinion.

It's not surprising, given Chief Justice Roberts's preference for narrowly drawn decisions, that the court did not venture to address that point but rather followed Justice Ginsburg's counsel "just to say that this resolution has no substantive effect, period[.]" Still, even though not directly asserted by the Supreme Court, that point still remains as a warning guide to the state court - as does the Chief Justice's advice, also given in oral arguments:

CHIEF JUSTICE ROBERTS: But if we told them that these various Federal resolutions, including the Apology Resolution, conveyed title to the State in a particular way that precluded the burdening of the State's title on the basis of Federal law, then they would have to find a basis under State law that was not inconsistent with the Federal law's conveying of perfect title ... And if the Hawaiian Supreme Court wants to create, under State law, a particular type of fiduciary obligation grounded on the status of the land prior to admission, then it has to run -- under the Supremacy Clause, it has to be consistent with the Federal provisions.

So any rationale for locking up the ceded lands based on a prior moral claim that they were taken from native Hawaiians without consent or compensation would seem vulnerable on appeal, the counter-argument being something like: Be that as it may, it does not act to cloud the perfect title passed by the federal government to the state.

But having based its decision that the lands are inalienable pending resolution of native claims on a holding that Hawaiians possess a prior moral claim that represents a cloud on title, the state court may have limited room to maneuver. Any different rationale to get to the same outcome will be obviously and patently a post-hoc improvisation to justify the court's imposition of its own policy preferences. The decision would be revealed as not an honest assessment of the law's requirements, but rather as an unprincipled assertion of 'the unfettered wisdom of a majority of the court.'

Although those agreeing with the court's policy preference in this issue would applaud such a decision, it would come with a cost to the court's credibility. If there is to be a change in the state's power with regards to the ceded lands, the legislature is the place it should occur. Better for a deliberative body with political accountability to craft a rule through debate, compromise and agreement than for the judiciary to pull a rule out of its hat and impose its policy preference on the other branches.

Charley Foster, a Kauai attorney, blogs at http://planetkauai.blogspot.com/

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