Because the Supreme Court was equally divided 4–4 in the case challenging Oklahoma’s refusal to allow the St. Isidore of Seville Catholic Virtual School to participate in its charter school program, the Oklahoma Supreme Court decision below was automatically affirmed today, bringing a strong free exercise challenge to an anticlimactic conclusion. Only eight justices participated in the decision because Justice Amy Coney Barrett recused.
The reasons for her recusal are not certain but are presumed to stem from her friendship with Professor Nicole Garnett at Notre Dame Law School. Garnett has been supportive of St. Isidore but is neither a counsel nor a party in the case. Interestingly enough, in Carson v. Makin (2022), a case dealing with similar issues, she signed an amicus brief and there were no recusals—nor should there have been.
Even if she were an advocate in Oklahoma Statewide Charter School Board v. Drummond, it should not have made a difference. Recusal because a friend has had some connection to the case—but is not a party—has never been the practice.
In fact, as Justice Antonin Scalia wrote in response to a high profile motion to recuse where his friend, Vice President Dick Cheney, was a named party, “while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue . . . . [a] rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.” And here no such actions on the part of Garnett are even at issue.
An enormous amount of time, money, and effort were spent on this case, only to have it end without resolution. No clarity has been provided for other states, or for that matter Oklahoma itself. The school is being deprived of its constitutional rights and cannot now vindicate them in court. Going beyond her duty to recuse could have pernicious long-term consequences if other justices were to do the same.
As the Court itself has noted in its Code of Conduct, “the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.” Put another way, as Justice Scalia quoted the applicable standard in the justices’ 1993 Statement of Recusal Policy, “Even one unnecessary recusal impairs the functioning of the Court.” That, I fear, is what happened here.