Our Black-Robed Legislators on the Oklahoma Supreme Court

Sep 4, 2019 | Blog | 0 comments

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.

by Benjamin Lepak, 1889 Institute Legal Fellow