Judicial Reform

Ousted justice had history of bizarre legal opinions

November 11, 2024

Ray Carter

On Nov. 5, Oklahomans voted for the first time in state history to oust a sitting member of the Oklahoma Supreme Court, voting against the retention of Justice Yvonne Kauger.

In recent years, Kauger had become known for drafting opinions that rambled and provided little guidance to Oklahomans, in addition to being infused with left-wing talking points.

Under the Oklahoma Constitution, state lawmakers cannot pass bills that contain separate, unrelated subjects, such as tying education funding to regulation of dairy products. That provision is known as the “single subject” rule.

In 2009, Oklahoma lawmakers passed the Comprehensive Lawsuit Reform Act. All provisions of the law dealt with lawsuit reform.

Even so, in 2013 a majority of justices on the Oklahoma Supreme Court struck down the law, claiming it violated the single-subject rule.

Peanut Butter Cookies and Beheaded Wives

In that case, Kauger authored a concurring opinion that stated, “Addressing the violation of the single subject rule is a recurring theme in our jurisprudence.” As a result, Kauger offered “guidelines with regard to the single subject provision” of the Oklahoma Constitution.

“If you make a peanut butter cookie, it is apparent that it is a smooth, one flavor cookie,” Kauger wrote. “It is still a peanut butter cookie even if you use crunchy peanut butter, because its major flavor is still peanuts. When you add chocolate chips, pecans, coconut, M&M’s, raisins, and dried cranberries, the additional discrete ingredients change the homogenous nature of a peanut butter cookie into a jumble of different tastes and textures. It is still a cookie, it is just not a peanut butter cookie.”

Kauger did not explain how officials could determine what she considered peanut butter and what provisions she considered chocolate chips when applying her “cookie” test for the single-subject rule.

In 2023, a slim majority of Oklahoma Supreme Court justices declared the Oklahoma Constitution provides a right to an abortion under certain circumstances, even though the state constitution contains no language dealing with abortion, either explicitly or implicitly.

Kauger wrote a rambling concurring opinion in that case that wandered throughout world history, citing numerous factoids with no real relationship to the Oklahoma Constitution .

“The early laws of Rome made women subject to the power of their husbands, and gave husbands the power to execute their wives under socially condoned circumstances,” Kauger wrote. “A husband during this period could put his wife to death for drinking wine or committing adultery. The King of England, Henry the VIII, beheaded two of his wives.”

She went on to declare, “Until 1974, most banks refused to issue a credit card to an unmarried woman, and if a woman were married, her husband was required to cosign. Equal pay for equal work is an area where progress has been slow. Employment of women has always been problematic. During World War II, the Rosie Riveters necessarily began doing men’s jobs because men were at war. After the war ended, the women were replaced by returning veterans who needed the jobs.”

Kauger also stated, “In the 1600’s in New Jersey, the law provided that women would be subjected to the same treatment as witches if they lured men into marriage with the wearing of high-heeled shoes. In the 1700’s Pennsylvania, a man could obtain a divorce if his wife had used cosmetics during courtship. (Today, women in Iran are subject to dying for failing to cover their hair).”

In Kauger’s concurring opinion, the aforementioned quotes came from sections with subheads declaring that women had a right to abortion “even at times when a woman had little or no say about her body,” “even at times when a woman had little or no say about her property,” and “even at times when a woman had little or no say about her dress,” respectively.

But those sections did not tie the various historical factoids Kauger cited to the Oklahoma Constitution.

Kauger eventually conceded that women have made some social progress since the days of Ancient Rome and Oklahoma’s pre-statehood days.

“For the most part, women are no longer considered to have the same disqualifications as prisoners, asylum dwellers, drunks, idiots, incompetents, felons, and sufferers from defects of sex; or too dumb, emotional, or irrational to be trusted with voting, jury duty, civic participation, or the practice of law,” Kauger wrote. “Nevertheless, women in Oklahoma before and after statehood had the right to terminate a pregnancy to preserve her life without the determination that a medical emergency existed.”

Kauger’s concurring opinion had little discussion of the Oklahoma Constitution.

In contrast, in his dissent in the abortion case, Chief Justice M. John Kane IV plainly noted, “Driven most certainly by a commendable kindness of heart, the majority engages in legal contortions to protect pregnant women who are in medical peril by fashioning Oklahoma Constitutional precepts of abortion law that simply do not exist. There is no expressed or implied right to abortion enshrined in the Oklahoma Constitution. In interpreting our Constitution, this Court must guard against the innate human temptation to confuse what is provided in the Oklahoma Constitution with what one wishes were provided.”

Democrat Stalwarts, David Holt Supported Retention

During the judicial-retention campaign that ultimately ended with Kauger’s ouster, two groups aired ads supporting Kauger’s retention: Hands Off Our Courts and Protect Our Freedoms LLC. According to a recent report, both groups are based outside Oklahoma. Hands Off Our Courts was incorporated in Delaware and Protect Our Freedoms LLC was incorporated in Ohio.

The individuals serving as the public face of the pro-retention campaign in support of Kauger were mostly former Democratic officeholders or longtime Democratic partisans. Former Govs. David Walters and Brad Henry, both Democrats, were often spokespersons, as was former Attorney General Mike Turpen, a Democrat, and Pat Hall, a former head of the Oklahoma Democratic Party.

Oklahoma Mayor David Holt was featured in a video produced by Hands Off Our Courts. While technically a registered Republican, Holt authored a column this year indicating he would not support Republican presidential candidate Donald Trump and would instead be voting for Democratic candidate Kamala Harris. Holt declared that Kauger and two other justices “know the law and they apply it without bias.”