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

Nov 18, 2019 | Blog | 0 comments

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 1889 Institute. He can be reached at blepak@1889institute.org.

*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.