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In my last post, I discussed how the Oklahoma Supreme Court simultaneously found an Oklahoma law to be ambiguous and absurd—a logical impossibility. The majority’s flawed logic was highlighted by the dissent written by former Oklahoma Supreme Court Justice Patrick Wyrick. His dissent deserves more attention, because it points out how justified my critiques of the state’s highest court are.

It's worth quoting from Justice Wyrick’s opinion at length:

These misapplications of the ambiguity and absurdity doctrines are symptomatic of an atextual interpretive approach that repeatedly rears its head in cases where the plain meaning of a statute strikes a majority of this Court as unwise. I fear 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.

There you have it from a former member of the Court whom President Donald Trump subsequently appointed to the federal bench. The Court’s action “invites criticism that the Court has lost its way as an institution.” His dissent then points out that while the Court sometimes pays lip service to interpreting statutes according to the text:

in cases where the plain meaning of the text leads to a result the Court does not like, the Court changes the question from “What did the Legislature enact?” to “What did the Legislature intend?”—a shift in interpretive approach that opens the door to the Court injecting its policy preferences under the guise of ascertaining the Legislature's intent.

Wyrick then turns to the idea of “legislative intent,” to show how problematic it can be to try to determine. After all, if the legislative intent can’t be ascertained by the text of the statute, the Court is ill-equipped to find it. In critiquing the Court’s quest to find legislative intent, Justice Wyrick pulls no punches.

This might be less problematic if the Court simply undertook to cold-bloodedly ascertain the Legislature's intent, letting the chips fall where they may. But that is not what the Court does. It instead seeks to ascertain an intent that is “reasonable and sensible” (or not “absurd”), which transforms the inquiry away from determining the Legislature's intent and toward determining what the Court would have intended were it the lawmaker. 

As Wyrick’s dissenting opinion points out, both the Court and the cause of democracy under the law would be better served by sticking to the text. “The text of the statute isn’t mere evidence of what the law is, it is the law, and it is the sole legitimate expression of the Legislature’s intent.” What’s absurd is that this needs to be said. 

After all, “[i]f the law is not the words that the Legislature enacted … then we need not bother with statute books because the law resides elsewhere, perhaps in the clouds …” 

If Oklahoma wants to be a state where the rule of law means something, the Oklahoma Supreme Court needs to confine itself to interpreting the law—not making it.