Skip to main content

Our Black-Robed Legislators on the Oklahoma Supreme Court


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.

Popular posts from this blog

No License, Sherlock: Licensing for Private Investigators

What does a private investigator do? Surely, we’re all familiar with various movies and shows featuring the exciting adventures of Sherlock Holmes or Magnum PI. However, reality is often disappointing, and the fact is private investigation is usually dull and relatively safe. Private investigators are tasked with conducting surveillance and fact-finding missions for their clients, but they gain no special powers to do so.  My recent paper deals with the licensing of private investigators. Oklahoma’s private investigator licenses are governed by the Council of Law Enforcement Education and Training (CLEET), which follows the advice of a committee made up of people who run private investigative agencies. Improved competition is not likely to be in the best interest of these agencies, so it is questionable whether they should be in a gate-keeping position they could easily turn to their advantage. Private Investigators must undergo a series of trainings and pas...
Read more

Eat Your Vegetables: City Council Considers A Well-Disguised Sin Tax

The Oklahoma City Council is considering a well-disguised sin tax. They call it a Healthy Neighborhood Zoning Overlay, but the effect is the same. It limits new dollar stores in the specified neighborhood. The ostensible goal is to create a welcoming environment for grocery stores selling fresh meat and produce. But it accomplishes this goal by giving existing dollar stores a monopoly, which will raise prices, and punish residents for shopping at the purveyors of (allegedly nothing but) junk food, instead of subsisting on fresh, organic kale smoothies like good little citizens. Why would the Council intentionally restrict the supply of stores where many of their residents buy basic household goods and food? Several possibilities present themselves, though none are sound.   A fundamental misunderstanding of the laws of supply and demand. Economists call the current state of the neighborhood a contestable market: dollar stores choose low prices because the mere p...
Read more

Let Us Work! The Futility of “Stimulus” to Counteract Foolish Covid-19 Shutdown Orders

When was the last time you ate money? When did you last wear it? Ever shelter under it during a storm? Fact is, money is only useful for purchasing the things we need. That’s the problem with yet more talk of a federal government “stimulus” in the face of state and local government-imposed economic disruption in response to Covid-19. Government stimulus simply means government is putting money in people’s pockets so we can buy things. But each and every thing we eat, use, and consume in our daily lives must be produced. That means “stimulus” is, at best, a temporary delusion. Give people money to spend that they don’t work for, sooner or later, there’s nothing left for them to spend that money on. Or, to rephrase Margaret Thatcher, “You eventually run out of other people’s stuff to buy.” Producing is not fun to most people, for the simple reason that producing means work. Only a wonderfully blessed minority so love what they do for a living that they truly feel like they do not work t...
Read more

On Coronavirus and American Exceptionalism

Most of us have no idea whether to fear the coming coronavirus pandemic or to scoff at what seems to be a panic, complete with toilet paper buying sprees. I find myself mostly in the latter camp, due not to some great scientific knowledge, but as a matter of general disposition. But I’m also a father of young children, so a touch of protective instinct kicks in whenever a big outside force that could harm my family rears its head. With much I don’t know, there is something I do know: If forced to weather a pandemic, I’d rather do so in the United States than any other country on earth. Watching news coverage, I cannot help but notice a subtle message underlying the words of far too many in the political commentariat. Many seem to speak about China’s management of the outbreak with envy . Their analysis is that because we are a big, unruly, open society, we cannot hope to make people to do what is necessary to stem the spread. The old “China for a Day” fantasy of Thomas Fri...
Read more