Earlier this month, OCPA published this piece discussing the political donations of several applicants to the vacant seat on the Oklahoma Supreme Court. As I anticipated, there were those who pushed back to suggest that judicial selection should be free from any political or partisan considerations. Not only is this unrealistic—it’s not even desirable. 

Regardless of whether a judge is appointed or elected, politics inevitably plays a role in this country. Why is that? The simple answer is that American courts have the power of judicial review. Former Supreme Court Justice Antonin Scalia described judicial review as “the power of the ordinary judge to frustrate the will of the legislature.” 

The power of a court to refuse to enforce legislation it believes to be unconstitutional is an incredible power that should include a political check. When other countries began moving toward the American system of judicial review, they also chose to include political checks on the appointment of those judges. In at least one instance, the German Bundesverfassungsgericht, it is the political parties that select the judges. 

Historically speaking, judicial appointments in the United States have been fairly uncontroversial—which is quite unlike what we’ve become accustomed to in the last few decades. The reason is pretty straightforward. For most of the country’s history—including the time in which Oklahoma was founded—courts almost universally interpreted statutes and constitutions based on the text of the documents themselves. 

But around the 1960s, courts, especially the United States Supreme Court, began utilizing a different model for interpreting statutes and constitutions, especially the United States Constitution. Under this new model, the Constitution was a “living document” that was not limited to the words on the page and what they meant at the time of ratification. Rather, the Warren Court began going beyond the text of the Constitution to invent new rights that can hardly be defended from the text.

For what it’s worth, I think these new “rights” are a mixed bag. Some of them—like the exclusionary rule in criminal cases—are great public policy, notwithstanding their absence from the text of the Constitution. The point isn’t whether any of the particular policy changes are good or bad. The point is that citizens will eventually expect to have more of a say through the political process when courts go outside the text to create new “rights.” Here, again, Justice Scalia said it best:

If the Constitution is not going to mean what its text said, but is rather to be a sort of empty bottle that each successive generation can fill with a different liquid, then by God it will be the People, and not some self-anointed judicial aristocracy, who will decide what that liquid will be.

And so we come to the Oklahoma Supreme Court. As OCPA has demonstrated in great detail through its Judicial Scorecard, the Oklahoma Supreme Court has repeatedly used strained interpretations of the Oklahoma Constitution or outright ignored it in some circumstances in order to reach legal conclusions some of its members prefer.

The Oklahoma Supreme Court has strained the interpretation of the single-subject rule, the prohibition on special laws, and other clauses to invalidate policies like tort reform, limits on abortion, and voter ID laws. As I pointed out here, former Oklahoma Supreme Court Justice Patrick Wyrick wrote that he “fear[ed] that this atextual approach invites criticism that the Court has lost its way as an institution devoted to merely saying what the law is, rather than what it ought to be.”

If the Court is going to act like a political branch, it’s hardly unreasonable for Oklahomans to wonder about the political persuasions of applicants to the state’s highest court.