Skip to main content

Toward a Judiciary That Promotes the Rule of Law

As I have been writing and speaking about the need to reform Oklahoma’s judiciary, I have been asked several times to explain what it is, exactly, that we should be looking for in a judge. More specifically, what should we look for in a state supreme court justice?

The primary job of a supreme court justice is to interpret and apply the state’s constitution. Though the Oklahoma Constitution differs in significant ways from the U.S. Constitution, a justice’s approach to interpreting the two documents--or any legal text--should be largely the same.

To know what kind of judge we are looking for, we first must answer a more basic question: what is the purpose of courts in the American system? Stated differently, how do we know if we have a properly functioning court system? How do we ensure courts that support, protect, and promote the objectives of the American project—things like individual freedom, fairness before the law, property rights, and representative government.

Courts exist to promote the Rule of Law. I capitalize that term because it is not some throw away phrase (“truth, justice, and the American way!”), but actually has a specific meaning in the American context. The Rule of Law is adjudication on the basis of rules previously established. Ideally, the rules are established prior to any dispute arising between two parties—in time for individuals to make decisions with a measure of certainty about the consequences of their actions. Most Americans have a fundamental understanding of the Rule of Law—and a reflexive aversion to anything that seems to undermine it. So ingrained is the Rule of Law to our sense of fairness and justice that we speak in shorthand about “moving the goalposts” or “changing the rules in the middle of the game” without need to explain any further why something like that is undesirable.

We take the Rule of Law for granted in the United States, but it really is a remarkable thing and not something that exists everywhere in the world (and has existed in very few societies over the course of human history). Take something as (seemingly) simple as a court making a ruling in a civil lawsuit. At the end of the day, when the Court has spoken, the warring parties comply with the ruling. Obligations are imposed on the litigants. The losing party pays money to the prevailing party, or has to take some action, or refrain from some action. The Court’s only real tool for enforcing such orders is its own credibility (and that of the broader judicial system). That is, the Court doesn’t have its own police force, doesn’t have the authority to tax or regulate, doesn’t have an army of bureaucrats to force compliance, and doesn’t really have all that much money. Rather, we all follow court rulings because, well, they are rulings from a court.

As Hamilton put it in Federalist No. 78, the judiciary “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”

We should be grateful that we live in such a society. The Rule of Law prevents disorder and, ultimately, misery. Most of human history has been spent under the yoke of a “might makes right” state of play. This inevitably produces undesirable circumstances, like a general inability to rely on promises and engage in commerce, rampant theft of property, and violence. I don’t mean to be dramatic; I'm not saying we risk a descent into anarchy in the United States if we pick some bad judges, but you get the idea.

But in addition to gratitude, we should pause to ask how the United States has been so successful on this front in the first place. There are many ingredients that combine to produce a society that is governed by the Rule of Law, but an indispensable component is a properly functioning court system. The wisdom of the framers of the American Constitution can be seen every day in federal courthouses across the country, where the machinery of the American legal system chugs away earning the respect it is justly given. Perhaps Oklahoma can learn something from this.

The surest way to consistently produce the type of court system we want is to pay careful attention to the method we use to select the judges who populate that system. The reason is obvious enough: the judges chosen in any given system will tend to reflect the qualities promoted by the judicial selection method. If the selection method is designed to produce qualities necessary to the maintenance of the Rule of Law--judicial independence, fairness, highly intelligent and experienced jurists, broad popular acceptance of legal rulings--we stand a much better chance of finding judges and justices who will reflect those qualities on the bench.

Fortunately, we can look at the various methods of judicial selection that are employed across the states to evaluate how well those methods perform. Perhaps a future post will do so in detail. But even better than the other states, we have long experience with arguably the most successful judiciary in world history in the federal court system. To improve the quality of Oklahoma's court system we need look no further than the system the great men drew up in Philadelphia in 1787.

So, what types of judges should we look for? Maybe that's the wrong question, or at least an incomplete one. We can and should list the qualities we are looking for in any individual judge we place on the bench. But perhaps we should reserve some of our energies for analyzing the method we use to select the judges in the first place. If incentives towards the Rule of Law are aligned there, we can worry less about any individual judicial appointee, knowing that overall the system's structure will promote the right kinds of judges.

Unfortunately, judged against this standard, Oklahoma's method leaves something to be desired.

-Benjamin Lepak is Legal Fellow at 1889 Institute. He can be reached at

Popular posts from this blog

The Truth About COVID-19: Better Than You Think

As the media turns its attention back to COVID-19, there is a renewed push to shut down the economy. Some states have even begun to scale back reopening plans for their economies; others continue to delay opening. It is essential to look past their catastrophizing and focus on the facts of COVID-19.One fact to consider: while testing has risen 23%, the rate of positive results has only risen 1.3 percentage points to 6.2%. Even as alarmists point to the rise in cases, they still admit that the boost in testing has played a role in the rise in the total number of known cases. Therefore, the total number of positive cases is not of much use in this case, as it only paints a partial picture. The rate of increase in total positive cases is a more meaningful measure, and it has barely increased. Even more important is who is getting infected. The data show that recent cases are primarily younger people. But that’s a good thing; these are precisely the people that are key to building herd im…

Supreme Court Frees States From Oppressive Blaine Amendments; School Choice Is Within Reach For Legislature

Last week SCOTUS told Montana, and by extension, the other 49 states that they can't exclude religious schools from generally applicable school choice programs simply because they are religious. This should have been the self-evident conclusion of anyone who read the First Amendment through the lens of history. The idea that the founders would have allowed states to discriminate against religious schools is foolish.
At the time of the founding, many states had established religions. It was only the federal government that was prevented from establishing a religion. It was also barred from interfering with states’ establishments. The relevant phrase is “Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof.” (emphasis added) The constitution has since been amended, and most of the rights codified in the Bill of Rights have been applied to or “incorporated against” the states - that is why state police can no longer search a hom…

Filling the Truth Vacuum Regarding COVID-19

With COVID-19 heating up again, and the resumption of societal shutdowns in other states, a pandemic strategy never seen in modern times, it seems appropriate to post facts with appropriate recommendations for action independent of politicized governmental institutions. Providing this information, along with relevant context, is the purpose of the new “COVID-19” webpage on the 1889 Institute’s website.
With the recent widely-reported surge in COVID-19 cases and hospitalizations, the impression created is that the pandemic has spiraled out of control. Therefore, our first factual installment is the following figure, which shows the number of daily new cases and the number of daily new deaths from COVID-19 in Oklahoma. Seven-day moving averages are also illustrated in order to show trends.
Source: The Covid Tracking Project (, which assembles data daily from the Oklahoma Department of Health (OKDOH). OKDOH does not provide longitudinal data.

Think Carefully before Voting on SQ 802

So we vote next week on whether or not to expand Medicaid according to Obamacare’s provisions. A vote “Yes” on State Question 802 would expand Medicaid to able-bodied adults above the poverty line. A vote “No” would keep the status quo, with taxpayers buying health care under Medicaid mainly for poor children and pregnant mothers.
But as with just about anything proposed by initiative, State Question 802 is not really that simple. For one thing, it forever entrenches a federal program, which can be changed by Congress at any time, in our state’s constitution, which is not so easily amended. Obviously, the proponents of SQ 802 want to set the terms of the Medicaid expansion permanently, sidestepping our constitutionally instituted legislature, which is supposed to react and adjust to existing circumstances. SQ 802 would take that flexibility away.
A consequence of that reduced flexibility will likely be sacrifices in other state-financed programs such as public education, both in the nea…