A major issue on the horizon is whether to limit the terms of office of members of the Oklahoma Supreme Court. Currently, justices are appointed for a life term and residents vote to retain judges every six years. Since the retention system was put into place in 1969, no judge has been removed through the process.
Last session, Senator Clark Jolley and Representative Jason Murphey proposed a constitutional amendment that would limit a judge’s tenure to twenty years. The measure passed the Senate but was not heard in the House Judiciary Committee. The 70 people who had the pleasure of listening to Speaker of the House T.W. Shannon’s speech on ECU’s campus this month learned that the issue is not dead. Speaker Shannon seems to be a strong proponent of judicial reform, explaining that when the Oklahoma Supreme Court acts to strike down legislation, they act as a “superlegislature.” For example, the legislature recently passed workers' compensation reform. The Supreme Court struck down the law because it didn’t meet certain requirements such as the single-subject rule. Consequently, the legislature held a special session to pass a new set of workers' compensation laws.
Oklahoma Supreme Court Justice Noma Gurich also spoke on ECU’s campus recently. It should come as no surprise that, as a sitting judge, she would be skeptical of judicial term limits. Gurich cited two practical concerns. First, a larger turnover in judges would lead to more changes in the law. When the law changes, people can’t count on it. Second, attorneys who become judges must basically quit their law practices when they go to the bench. If a lawyer becomes a judge but can only serve for twenty years, it is possible that he or she may have to return to private practice. This would be difficult for judges and would reduce the number of people who would applying for judicial vacancies.
Term limits have become quite popular in Oklahoma. With recent law changes, all ten statewide offices – such as governor, treasurer, and attorney general – have term limits. Legislators also are limited to 12 years in office. If the measure passes out of the legislature and people have the opportunity to vote, it’s very likely that they will vote for term limits.
Perhaps the greatest discussion of the tenure of judges can be found in “The Federalist Papers,” which was an ad campaign written in 1788 to urge ratification of the Constitution. Alexander Hamilton wrote Federalist No. 78 which urged judicial “permanency in office.” He wrote that, “Liberty can have nothing to fear from the judiciary alone.” An appellate judge’s power is great, but it is also very passive. For example, courts cannot solicit certain issues or cases and can only decide what is before them. Additionally, they have no enforcement power. Courts are beholden to the executive branch to enact whatever decision they have made. Finally, Hamilton wrote that, “The complete independence of the courts of justice is particularly essential in a limited Constitution.”
Politically, the clash between the Oklahoma Supreme Court and the legislature is heightened because in 2010, Republicans won control both the executive and legislative branches. Many of the judges on Oklahoma’s three appellate courts were appointed by Democratic governors, such as Brad Henry. The result is a clash of values between the judges and the elected branches of government.
A clash like this has occurred before, but on the federal level. After President Franklin Roosevelt was elected in 1932, he worked with Congress to pass hundreds of bills that we know as the New Deal. Roosevelt and Congress were dominated by Democrats, but the U.S. Supreme Court was majority Republican. The Court struck down every piece of New Deal legislation as unconstitutional.
President Roosevelt was so frustrated with the Court that he suggested a plan to add new members to the Supreme Court who would uphold his legislation. Roosevelt’s “court packing plan” never went into effect because just after it was suggested in 1937, the Supreme Court stopped striking down New Deal bills.
The judicial branch is not supposed to agree with the elected branches. The legislature and governor do what is popular, but the court upholds the Constitution and interprets statutes, whether their decisions are popular or not.