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Gov. Josh Green will put his stamp on the state’s highest court when he picks the next two associate justices this month. His decision will be carefully watched by lawyers and judges throughout the islands — so how should he make his choice?

First, it’s helpful to look at how the Hawaii Supreme Court has turned our state constitution into a wellspring for civil liberties and individual rights often in contrast to the United States Constitution.

To quote the court itself, the Hawaii Supreme Court is the “ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai’i Constitution.” In other words, its interpretations of the Hawaii Constitution are binding on every branch of state government.

That also means that the court’s interpretation of the state constitution cannot be reviewed by the Supreme Court of the United States (unless it violates the federal constitution, but that’s another story).

Take privacy. It has taken nearly a century for judges and lawyers to recognize a right to privacy in the U.S. Constitution. Jurists like argued that while this right may not exist in the text itself, it is nevertheless a substantive part of constitutional law. From this came the right to privacy and “liberty interests” like the right to marry, the right to use contraception, rear children and — until recently — the right to terminate a pregnancy.

Conservative jurists have raged against this for most of my life. For them, their inability to find anything expressly written into the text meant that it didn’t exist. While it is nice to have these rights, they’re simply not constitutionally protected and so a state is free to extinguish them, the conservative jurists argue.

That thinking is how the U.S. Supreme Court and overturned Roe v. Wade.

Hawaii avoids this problem by having an express right to privacy written into the constitution. It’s there between due process and the law of search and seizure (and invasions of privacy — an additional protection that is not written into the Fourth Amendment). And the Hawaii Supreme Court has used these express provisions to depart from doctrines and positions of the Supreme Court of the United States and give more protection for individuals. 

And it’s not just privacy. Even when the language in our state constitution is identical to its federal counterpart, the court has not shied away from going beyond the federal courts. It’s part of our own local jurisprudence.

Not long after statehood, Justice Bernard H. Levinson wrote that the court, “as the highest court of a sovereign state, is under the obligation to construe the state constitution, not in total disregard of federal interpretation of identical language, but with reference to the wisdom of adopting those interpretations for our state.”

This has served as an invitation for lawyers. As the Supreme Court in Washington got increasingly conservative with justices appointed by former Presidents Richard Nixon, Ronald Reagan, George H.W. Bush, George W. Bush and Donald Trump, lawyers in Hawaii have turned to the state constitution as an independent and vibrant alternative for constitutional protections.

And the court has more or less been receptive. In criminal cases, Hawaii courts have declined to follow the rightward direction of the United States Supreme Court. In some cases, the Hawaii Supreme Court adopts the views from progressive jurists to interpret the state constitution. (Justice Sonia Sotomayor is often cited these days).

And that’s just criminal law. The language in the Hawaii Constitution itself confers plenty of rights that are found nowhere in the federal constitution. Not only are there expansive individual rights for the accused but also a civil right to “a clean and healthful environment.” There’s also the right to form unions in the public and private sectors.

Not only that, but the constitution imposes obligations and duties on the state. There’s the public trust doctrine requiring the state to manage public natural resources “for the benefit of the people.” The state also has to “provide for the protection and promotion of the public health” and has the power to protect older adults, people with disabilities and those in need of public assistance. It is obligated to establish a school system that is “free from sectarian control” and prohibits public funds being spent on private schools.

Then there’s the code of ethics. Indeed, in a state recently rocked by corruption scandals and low voter turnout, our constitution incorporates a code of ethics because “public officers and employees must exhibit the highest standards of ethical conduct” in which “these standards come from the personal integrity of each individual in government.”

But these rights and obligations are just words on paper without the court. It falls to the courts to hold government to task and order it to adhere to its constitutionally mandated duties. Individuals asserting a violation of their constitutional rights — state and federal — turn to the courts for redress.

Gov. Green will choose two from a list of six candidates. Five are already judges and one is a lawyer. Three of them are judges on the Intermediate Court of Appeals just below the Hawai’i Supreme Court. Two are trial judges. There are two men and four women. All of them work in Honolulu. All of them are accomplished and have their supporters.

I hope the new associate justices are sensitive to our dynamic constitution. I hope they respect our longstanding tradition of departing from federal interpretations of the United States Constitution on the mainland. We need that as the federal courts become less likely to advance substantive rights existing outside the text of the constitution.

I also hope that the new justices are willing to make difficult decisions and are receptive to new ideas, legal arguments and challenges that come before them. In 1978, Chief Justice William S. Richardson reminded lawyers and judges of Hawaii that a smoothly operating legal system is not the same as a system of justice.

“Our thinking must be imaginative and dynamic, and we must experiment and constantly seek better ways, bearing in mind that our objective is fairness and justice and not efficiency for its own sake,” he said.

Let’s hope the two new justices feel that way too.