When the nine lawyers on the Oklahoma Supreme Court meet to hear a case, no legislation is safe. That's because the justices on the Supreme Court regularly act as though they are lawmakers instead of judges.
My most recent paper, Legislators
in Black Robes: Unelected Lawmaking by the Oklahoma Supreme Court,
explains how the justices achieve this lawmaking.
When the justices decide their
mission is to take out a law, they weaponize otherwise mundane provisions of
the state constitution (the single subject rule and the ban on special laws,
for example) to strike the law down. If that tool is too blunt of an instrument
for their purpose, they declare a law “ambiguous” and go about re-writing it
from the bench. They justify the re-writing as an attempt to conjure the
“intent” of the statute, regardless of what the actual words on the page say.
If the law the justices want to strike down isn’t ripe for review, no problem.
The Court has invented a concept called “public interest standing,” which
allows the justices to hear virtually any case they desire so long as it concerns
a “matter of great importance.”
These are not the actions of a properly functioning
judicial branch. These are the tactics of political actors who want to
substitute their own policy preferences for those of the people elected by the
public to make policy. It’s disheartening to see such disregard for the
separation of powers from people who went to law school and swore an oath to
uphold the Oklahoma Constitution.
Oklahoma’s particular flavor of judicial activism is
worse than the type we see in the federal courts because the Oklahoma
Constitution dictates
far more judicial restraint than does the federal constitution.
Where the US Constitution gives Congress very limited powers (making federal
courts more justified in striking down legislative enactments), the Oklahoma
Constitution allows the legislature to pass any law not specifically forbidden
by the state or federal constitution (meaning the state courts should very
rarely invalidate the legislature’s enactments).
Worse still, the Oklahoma Supreme Court appears to
consistently favor a connected group that has a financial and professional
interest in the Court’s rulings. Trial lawyers—despite comprising less than one
percent of Oklahoma’s population—have captured the process for selecting justices for the Supreme Court. Unsurprisingly, the Court consistently
rules in a manner that expands liability, favoring trial lawyers.
Which brings us to
the heart of the problem, and gives us a clue as to a solution. Oklahoma will never
be a Top Ten state until we replace judges beholden to trial lawyers with neutral
jurists who will simply apply the law. And we will not break the trial bar’s
grip on the courts until we change our method of selecting judges and justices.
Getting rid of the Judicial Nominating Commission will require a constitutional
amendment, but one that is long overdue. We just need some state leaders with enough
courage to take the reins and get the job done.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.