Saturday, September 19, 2020

1889 Institute: To save the Oklahoma judiciary, we must reform it


To Save the Oklahoma Judiciary, We Must Reform It

The Oklahoma Supreme Court too often acts as though it is a super legislature rather than the state’s highest court. It 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 desires 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 abuses its 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. It is what we hired them to do, and they have a duty to do it.

The surest way to reform the Court is to change the way justices are selected. That process is dominated by the Oklahoma Bar Association, under a system documented to produce a more left-wing judiciary than other selection methods. Unfortunately, in Oklahoma, doing so would require the heavy lift of a constitutional amendment.

But the Legislature is not without recourse.

A dozen measures recommended by the 1889 Institute can be achieved by statute instead of constitutional amendment. Some are relatively uncontroversial reforms, such as requiring the Supreme Court to keep a public calendar of cases and making the Judicial Nominating Commission subject to the Open Meetings Act. Others are more significant, such as implementing term limits for appellate judges and restructuring the way appeals work their way through the system. All the proposals are aimed at the same thing: restoring the Oklahoma judiciary to its proper constitutional role.

Several of 1889 Institute’s proposals were introduced as legislation and were making their way through the committee process, only to be stymied by the pandemic’s hijacking of the legislative session. We hope they are proposed again next session.

As Oklahoma builds on recent judicial reform momentum, we should not concern ourselves with the outcome of any particular case, but with the structural flaws in Oklahoma’s judiciary. We should demand judges and justices who are committed to the rule of law. We should evaluate institutional incentives and, where misaligned, straighten them out. The elected branches should fulfill their oaths, assert themselves in their lawmaking roles, and help the judiciary find its way back to its own constitutional role. In short, we should restore state government to balance.

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, one whose legitimacy is unquestioned. It’s high time Oklahoma had one.

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


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