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

COVID-19 Proves Our Schools Are Social Service Centers First, Education Institutions Second

There is no way the 180-day (or 1,080 hours) school year can be completed by the end of previously established school calendars for this year given the fact that spring break has now already been effectively extended an additional two weeks. One option would have been to extend the school year into the summer. Given the level of family togetherness being experienced now, and the fact that incomes are being lost and many would be interested in making up the losses, it’s not unreasonable to expect vacation plans to be radically remade or canceled anyway. Instead, Oklahoma’s State Board of Education precipitously closed the schools and did not call for an extension of end-of-school dates. Thus, the summer option has been foreclosed. The State Board is within its rights. Oklahoma statutes (70 O.S. § 1-109 E) state, “A school district may maintain school for less than a full school year only when conditions beyond the control of school authorities make the maintenance of the term imp...
Read more

Robbing the Poor to Give to the Rich: Corporate Welfare in Oklahoma

Imagine that someone forcibly takes your hard-earned money and then simply gives it to a multi-billion dollar corporation such as Home Depot, Wal-Mart, or Boeing. You receive no benefit from this forcible redistribution of wealth, and the sole beneficiary is the corporation. You would most likely be outraged, and justifiably so. Unfortunately, this forced redistribution of wealth happens in Oklahoma (and the nation as a whole) all the time via a variety of state and local corporate welfare schemes.   Policymakers either take your hard-earned money (via taxes), and directly subsidize large corporations or give those corporations tax breaks nobody else can get. All of this is done in the name of jobs and economic development, but these favors bring very little (if any) benefit to you. This is tyranny, plain and simple. In fact, it is not unlike the sort of advantage nobility took of commoners before the American Revolution, only the modern nobility is just very good at lobbying. In ...
Read more

Intellectual Corruption in Public Schools Exposed by COVID-19

Oklahoma is opening up in stages at last, thank goodness. While we have thought, from the beginning, that shutdowns have been a bad idea, what’s done is done. Now is the time to start recovering, and the faster we get fully re-opened (with prudent precautions for the vulnerable, of course), the better off we will be. Luckily, we are in the United States; the economic damage done here by shutdowns will be far less deadly than in poorer nations as global poverty is expected to increase for the first time since 1998 due to imprudent shutdown orders. And speaking of imprudent shutdown orders, none have been more imprudent than closing Oklahoma’s schools for the last 9 weeks (practically a full quarter) of the year. Action on the part of state leaders was so precipitous that, while we could be talking about re-opening schools to salvage at least part of the lost educational time, it is not now possible . And of course, we now know children were at low risk from the virus and that ...
Read more

Shut Downs Likely to Result in More COVID-19 Deaths than if Nothing Were Done

More people will die as a result of COVID-19 because we closed the schools than would have if we’d kept the schools open or if we’d brought the kids back to school in summer. That is part of the message from Knut M. Wittkowski, who headed the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University in New York, when he was interviewed around April 6. ( The Rockefeller University is a private graduate college focusing on biological and medical sciences, providing doctoral and postdoctoral education and with which 36 Nobel laureates have been affiliated.) In effect, the same message was given by experts cited by 1889 Institute in a March 24 statement decrying the plan to turn out public schools for the year. Dr. Wittkowski explains in detail that “herd immunity” is critical, indeed absolutely essential, to end a respiratory disease pandemic. Herd immunity occurs when at least 80 percent of a population has been exposed to the disease and...
Read more