Skip to main content

What Do You Mean the Oklahoma Supreme Court Doesn’t Publish a Docket?

One of the most routine things any court does is to publish its “docket.” This public calendar announces the cases the court will hear and when they will be heard. The docket doesn’t just keep the court on schedule and notify the parties in litigation when to show up for court, it puts the public on notice as to what is going on in the legal system. This allows for a very basic level of public monitoring of what is (mostly) supposed to be a public process, and at the appellate level allows anyone who may have a personal or business interest in the interpretations of law the court is considering to follow, or sometimes influence the process.

Court dockets are routinely published all across the United States and at every level, from the lowest traffic court to the United States Supreme Court. But, incredibly, not at the Oklahoma Supreme Court.

No, really.

Earlier this year I called the office of the Clerk of the Oklahoma Supreme Court and asked for a copy of the Court’s docket. The voice on the other end of the line  did not seem to understand what I was asking for. I clarified that I was trying to obtain a schedule of upcoming sessions where the Court would hear oral argument (the Supreme Court’s version of hearings). When told such information was not centrally kept, I asked for a listing of all cases pending before the Court. When I still didn’t get anywhere, I incredulously asked whether the Court keeps a calendar in any shape, manner, or form so that the justices know when to show up and which briefs to read. The Clerk’s office told me they couldn’t help me.

I later visited the Court in person and, after talking with seemingly every person who works in the Clerk’s office, still had no information. At the end of this exasperating experience they informed me that the only way to track the Court’s cases was to do so manually—they gave me the number of the most recent case filed with the Court and advised me to do a search on OSCN every day for the next number in the series. Seriously?

Of course, the Court does keep a docket (I later had this confirmed in a call to the chambers of the Chief Justice). It’s just not made public. This is apparently so ingrained at the Oklahoma Judicial Center that the employees of the Clerk’s office are not even aware of the docket’s existence.*

This is not just a matter of transparency. The Court is robbing itself of intelligent scholarship and argumentation that it would receive if it opened up the process. At the federal level, issues are debated extensively by practitioners and legal scholars long before they reach the Supreme Court. Law review articles are written. Conferences and panel discussions are held. 

For example, the Federalist Society—a conservative lawyers’ group—convened its annual conference last week in Washington, D.C. Attendees were treated to in-depth panel discussions titled, among other things “The Future of the Establishment Clause in the Roberts Court,” “Nondelegation after Gundy—Are We ‘Waiting for Godot?’” and “Does Originalism Protect Unenumerated Rights?”

In contrast, every month lawyers in Oklahoma receive their Bar Journal, which includes recently published cases from the Oklahoma Supreme Court. What is not included? Any indication as to what the Supreme Court will be deciding in the near future.

Consider what that means for practicing attorneys, legal scholars, businesses, or people involved in Oklahoma’s political process: there is practically no ability to monitor what the Court is doing in a way that allows any of those people to actually contribute to the process.

Let’s take the United States Supreme Court as our standard. The Supreme Court only agrees to hear a select few of the thousands of cases per year that come to it. This is called “granting certiorari.” From the beginning, the process is much more manageable for court-watchers to monitor. Certiorari orders are issued from the Supreme Court and are put on a briefing and argument schedule. This schedule is publicly available on the Court’s website.

Interested groups get to work, filing amicus (“friend of the court”) briefs that bring to the Court’s attention issues that may not be fully addressed (or addressed at all) by the parties to the litigation. Commentators and scholars debate the merits of pending cases and flesh out each side’s arguments. Officials in the government prepare for how a decision by the Court one way or the other will change their work. Elected officials hatch plans for responsive legislation. And on and on.

In short, an entire ecosystem that exists entirely outside of the Court—but will be greatly impacted by its decisions—is able to proceed with some measure of intelligence about how the Court's interpretation of the law is about to change (or not). Moreover, the Court can be confident that by the time it rules on a case, it has given the constitutional issue at stake a thorough vetting, beyond that which it could ever be expected to accomplish on its own. This is healthy for the Court’s legitimacy and leads to better results.

No such ecosystem exists in Oklahoma. Amicus briefs are very rarely filed, and when they are, they typically re-hash the positions of the parties in the litigation. Any practitioner or scholarly debate is almost entirely retroactive. That is, knowledgeable lawyers debate what the Court has already done, not what it should do. To the extent legal scholars describe what the Court should do in the future, it usually takes the form of pointing to a bad decision and stating the Court should reverse itself. State agency employees and elected officials are caught flat-footed when the Court announces a significant ruling, having no advance warning and no plan to deal with the aftermath.

The most common comment I heard from legislators after the Oklahoma Supreme Court (incorrectly, in my view) struck down a popular tort reform provision earlier this year was some variant of “I didn’t even know that case was in the works.” I felt sheepish—as someone who closely follows the Court and seeks to provide expertise on the subject to policymakers—to admit that I didn’t either. In my defense, the Court sat on the case for nearly 4 years before making a decision. When the case first landed at the Oklahoma Supreme Court in 2015, Barack Obama was President, Mary Fallin was Governor, and Bob Stoops was leading the Sooners to their first ever College Football Playoff appearance.

The lack of vigorous debate around important Oklahoma cases contributes to the vast gulf in the quality of reasoning between opinions of the United States Supreme Court and those of the Oklahoma Supreme Court. This cannot be explained only by a difference in resources and talent, though that matters. U.S. Supreme Court opinions read like treatises on the law, examining the history and text of a constitutional provision and the jurisprudence surrounding it; Oklahoma Supreme Court opinions read like a test of the Emergency Broadcasting System (short, mildly unpleasant to endure, and leaving the reader/listener confused about the reason for the message).

With their refusal to publish a docket, it’s almost as if they want it that way.

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

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

*Note: I have rolled my eyes at this lack of a public docket for years, but had never taken the time to confirm that I wasn't missing something. When I inquired, I half-expected to be embarrassed that I hadn’t made this call years ago, with the person on the other end saying “of course, let me email it to you.” Maybe I had just assumed the worst? Nope. There really is no public docket.

Popular posts from this blog

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

Muddy, Shallow Thinking Versus Clarity in Education Reform

Monopolies are the best! If we are to gain maximum efficiency and create the greatest value for people, monopoly is the way to go. Competition creates administrative inefficiency since instead of one set of managers, there are as many as there are companies, and all of them cost money. Competitive companies make products that do the same basic things, but waste resources by making products with different features. Standardized products would save money. Were research and development under one roof, instead of many competitive ones, researchers could coordinate more closely, saving money and ultimately being even more innovative. Monopolies would therefore benefit everyone. Everything in the first paragraph is, of course, balderdash . Monopolies, especially those created by government, stifle innovation, develop bloated management, produce too little at low quality, and charge too much. Why? Because they can. They’re monopolists. Without competition and with nearly guaranteed ...
Read more

Lies We Tell in Government, and Our Debts to Truth

HBO’s mini-series,  Chernobyl ,  is a drama depicting  the disastrous  1986  explosion ,  and  hero ic efforts to control the  resulting  meltdown ,  of the Chernobyl nuclear power plant in Ukraine  (then part of the Soviet Union ).  A flawed man, but true hero,  Valery  Alexeyvich   Legasov , worked tirelessly to ameliorate the disaster’s consequences and  chiefly  investigated its cause. He was  Deputy Director of the  Kurchatov  Institute of Atomic Energ y , a Soviet elite, who  is portrayed at the end of  the  series making a dramatic speech at a trial about how the nuclear reactor exploded, when  such an explosion in that type of reactor  should not have been possible. In the course of the series, the audience  learns  that the reactor had a design flaw that had been covered up by the Soviet State (true).  The audience also learns  that...
Read more

The Unfairness of Concentrated Wealth is NOTHING Compared to the Unfairness of Redistributing It

Socialist types like to accuse rich corporate types of having “too much” wealth. Simple fairness, they claim, dictates that one person should not have so much when so many have so little. But if we’re going to talk about fairness, let’s really give it fair consideration. That means looking beyond the petty jealousy and thinking about the fairness of seizing wealth from those who earned it and giving it to those who did not.   How did the wealthy get that way? The socialist types claim that the greedy capitalists exploit their workers and their consumers. Is that true? Let’s start with the workers. Jeff Bezos may be greedy. I wouldn’t know, I’ve never met him. But I did work for him - in fact I hired other people to work for him. So I can say with reasonable certainty that he hasn’t created his enormous wealth by exploiting his workers. They were all there voluntarily.   Before attending law school, I spent several months working for the temp agency that hires seasonal workers ...
Read more