Justice Barrett Sits One Out

Justice Amy Coney Barrett’s recusal from the landmark religious liberty case — oral arguments were this week, ruling to come — of Oklahoma Statewide Charter School Board v. Drummond strikes us as a shocking stumble. The folly of sitting this one out is multifactorial. If the Nine, diminished to eight, are deadlocked, the Oklahoma supreme court’s ruling blocking the country’s first religious charter school stands. And that’s the least of the loss.The fate of the virtual school, St. Isidore of Seville, a project of the archdiocese of Oklahoma City, now would appear to rest with Chief Justice Roberts, who has at times appeared to be moving in sync with Justice Barrett as something of a dynamic duo within the court’s conservative majority. The consequences of Justice Barrett’s recusal, though, stretch beyond even this case. Her eschewal of the “duty to sit” could portend poorly for the court’s future.Tradition is that justices don’t proffer a reason for recusal. Federal law ordains that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” There’s a question in respect of whether the Congress can require this of a justice. Chief Justice Rehnquist explained that in any case where a justice is not “disqualified,” she has the obligation to hear the case. Chief Justice Roberts himself has explained that the decision to recuse is a justice’s alone. Justice Antonin Scalia ventured: “Even one unnecessary recusal impairs the functioning of the Court.” Was Justice Barrett’s recusal unnecessary? We spoke to a legal sage, Joshua Blackman, who speculates as to three possible grounds for why she will not decide the case. First, St. Isidore is represented in part by the Notre Dame Religious Liberty Clinic.Justice Barrett is an adjunct at Notre Dame. So, though, is Justice Brett Kavanaugh, who did not recuse. Another reason for Justice Barrett’s distancing herself from the case, Mr. Blackman explains, is her friendship with a married pair of advisers to the clinic, Rick and Nicole Garnett. Mrs. Garnett was an early counselor to St. Isidore, and the two clerked on the high court together — Justice Barrett for Justice Antonin Scalia, and Mrs. Garnett for Justice Clarence Thomas. Mrs. Garnett describes her life as “completely intertwined” with Justice Barrett’s. Even if Justice Barrett and Mrs. Garnett are boon companions, though, that does not, at least to our lights, meet the standard for recusal. It also could set a baleful precedent where recusal becomes the norm. Mr. Blackman calls St. Isidore’s “a paradigm shifting institution for religious instruction.” Justice Barrett will be absent from charting its constitutional future.What could have been a landmark of religious liberty now threatens to make no mark on the law. If Chief Justice Roberts follows Justice Barrett’s recusal by siding with the court’s liberals, a deadlock could ensue. There will be no written opinion, and the Sooner State’s highest court will have the last word. Mr. Blackman reckons that would be an “easy way to duck the issue,” especially since there are no other cases with these parameters percolating in the pipeline.The biggest problem with Justice Barrett’s blunder is not the question of religious freedom. There will be other chances on that front. It’s her decision to recuse herself for reasons that appear less than compelling. Democrats in recent years have been on a veritable recusal rampage, demanding that Justices Thomas, Samuel Alito, and Neil Gorsuch step aside from cases because of perceived conflicts of interest.The justices have resisted those calls, and the body of Supreme Court law is more abundant for attention to the duty to sit. Chief Justice Roberts and, before him, Chief Justice Rhenquist have spoken or written eloquently on the duty to sit. The Roberts Court’s jurisprudence on religious liberty is one of its glories. Justice Barrett has, alas, passed on the opportunity to further gild it, while casting shade on those to step up when the duty to sit calls.

Justice Barrett Sits One Out

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