Skip to main content

To Save the Oklahoma Judiciary, We Must Reform It

Last month, 1889 Institute published my study on the unfortunate state of the separation of powers in Oklahoma government, describing a state Supreme Court that too often acts as though it is a super legislature, in the business of enacting legislation rather than what it is supposed to do. The court should be a neutral arbiter, applying the laws passed by the actual Legislature to cases that come before it. Instead, the Court appears to first determine the policy result it seeks and then dream up the arbitrary legal reasoning necessary to justify that result.

The Oklahoma Legislature is not required to sit idly while the Oklahoma Supreme Court usurps the Legislature’s constitutional authority. It can—and should—act to rein in the Supreme Court. In fact, legislators have a responsibility to jealously guard their own institutional power. After all, we sent them to the Capitol as our representatives. Legislators can no more shrink from their responsibility to exercise their constitutional authority than a lawyer can refuse to argue his client’s case in court. It is what we hired them to do, and they have a duty to do it.

Today, in Taming Judicial Overreach: 12 Actions the Legislature Can Take Immediately, I follow up with proposals to address the problem that the Legislature can enact on its own. Some are relatively minor reforms, and some are more significant, but all of them are aimed at the same thing: restoring the Oklahoma judiciary to its proper constitutional role. Each reform can be achieved by statute, so the Legislature need not wait for a constitutional ballot initiative. It can act during the coming legislative session.

As we build on recent momentum to further reform of the judiciary, we should not concern ourselves (not primarily, at least) with the outcome of any particular case. Rather, we should seek to remedy the structural flaws in Oklahoma’s judiciary. We should incentivize the appointment of judges and justices committed to the rule of law. We should evaluate institutional incentives and, where misaligned, straighten them out. We should elevate the elected branches to their proper lawmaking roles, and help the judiciary find its way back to its own constitutional role. In short, we should restore our government to balance.

And while doing so, we should make clear that we seek to reform the judiciary not because we oppose it or wish to degrade it, but because we aim to rescue it. Our liberty requires a competent, independent, and fair judicial branch. It’s high time Oklahoma had one.

The following reforms are proposed with that high ideal as their explicit goal. In the past, entrenched members of the legal establishment have denigrated all attempts at reform as attacks on the judiciary or on lawyers. I expect my proposals will be met with the same calumnies. But make no mistake: my urgency in seeking reform is motivated by an acute understanding of the importance of the judiciary, not by any animus toward it. I am a lawyer, after all.

The time for obfuscation from the legal establishment has passed. I welcome debate with any defenders of the status quo who seek to engage in honest discussion about the future of the Oklahoma judiciary. But cries of "the judiciary is under attack!" will be received with the unseriousness with which they are made.

1.    Eliminate the Judicial Nominating Commission’s (JNC) role in filling vacancies for all courts below the Supreme Court.
2.    Remove the Oklahoma Bar Association (OBA) from the process of selecting JNC members.
3.    Re-organize the Court of Civil Appeals to create a true intermediate appellate court.
4.    Make the JNC subject to the Open Meetings Act.
5.    Ban lobbying of the Legislature by members of the Supreme Court and employees of the Administrative Office of the Courts.
6.    Limit Public Interest Standing.
7.    Establish rules for recusal of justices from cases, and prescribe procedures for appointing special (substitute) justices.
8.    Add “improperly exercising the powers of the legislative branch” as a ground for impeachment of a Supreme Court justice.
9.    Implement a term limit for Supreme Court justices.
10. Require additional information to be reported by the judicial branch annually for purposes of oversight.
11. Make the Supreme Court subject to the Open Records Act.
12. Require the Supreme Court to Maintain a More Easily Accessible Docket.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.


Popular posts from this blog

Be Careful What You Wish For

The state of Oklahoma has California in its sight s . People and businesses seeking greater opportunity are fleeing California, and justifiably so. The most humane thing for Oklahoma to do is open our borders and offer economic asylum to the oppressed refugees of the People’s Republic of California. However, I urge caution. In an age dominated by masked faces and super-sensitivity to the spread of viral conditions, I suggest the California Condition (condition) should be met with great trepidation.   What is the condition? It is the virulent spread of tyranny and oppression. Common symptoms include limited freedom and mobility accompanied by exorbitant costs of living, energy, doing business, and pretty much everything else. Those suffering under the condition often experience a diminished capacity for reason. Uncommon symptoms may include fever and fits of rage. The condition is progressive. It tends to worsen as reason diminishes and illogic consumes the mind. Many that experienc...
Read more

Present Reforms to Keep the Ghost of State Questions Past from Creating Future Headaches

Oklahoma, like many western states, allows its citizens to directly participate in the democratic process through citizen initiatives and referendums. In a referendum, the legislature directs a question to the people — usually to modify the state constitution, since the legislature can change statutes itself. An initiative requires no legislative involvement, but is initiated by the people via signature gathering, and can be used to modify statute or amend the constitution. Collectively, the initiatives and referendums that make it onto the ballot are known as State Questions.   Recently, there have been calls to make it more difficult to amend the constitution. At least two proposals are being discussed. One would diversify the signature requirement by demanding that a proportional amount of signatures come from each region of the state. The other would require a sixty percent majority to adopt a constitutional amendment rather than the fifty percent plus one currently in place. ...
Read more

A Simple Way to Improve Oklahoma’s Selection of Judges: Open Up the Process

The synod has finished its secret meetings and taken its vote behind closed doors. The public waits with bated breath (well, some of us) to get a glimpse at the new high priest who will don his formal vestments and take his seat at the commanding heights of doctrinal authority. Who will it be? Who will it be?! Then, as if delivered from the heavens, the names appear in a short announcement tucked in an obscure corner of the internet . WE HAVE CHOSEN. I am not describing the last papal conclave . I am describing Oklahoma’s unnecessarily mysterious process for selecting Supreme Court justices. All we are missing is the plume of white smoke. The nuances of the judicial selection methods employed by the 50 states are as varied as the cuisine. Some utilize elections, some gubernatorial appointments, some even have legislative appointments. We have commented on the relative strengths and weaknesses of these various methods, and will continue to do so, but some things are so f...
Read more

Higher Home Prices, Brought to You by Oklahoma's Occupational Licensing Machine

Increasingly, people across the ideological spectrum recognize the costs of occupational licensing. Almost since its inception, the 1889 Institute has highlighted several of the least justifiable licensing regimes in Oklahoma. Each individual license may seem, if not harmless , then at least only slightly harmful on its own. But the effects add up. It is estimated that licensing costs $203 billion each year, and results in up to 2.85 million fewer jobs nationwide. One of the principle ways Americans build lasting wealth is through home ownership. So a license that interferes with this process is particularly galling.  The transaction costs of buying and selling a home in Oklahoma are too high. This is not a matter of opinion, like “the price of gas is too high” or “the luxury goods I would like to own cost too much.” It is an empirical fact. The way Oklahoma regulates the Abstracting and Title Insurance industries tangibly and demonstrably impacts the cost of buying...
Read more