Religious Liberty Loses at the Supreme Court 4-4

In baseball a tie may go to the runner, but when the Supreme Court is deadlocked, it is the American people who lose. That’s our takeaway from the high court emerging with a 4-4 non-decision on the creation of America’s first religious charter school. It is an astonishing abdication of the first duty of any court — to render a judgment. The tie preserves the Oklahoma supreme court’s decision that such a school is crosswise with the Constitution.The recusal of Justice Amy Coney Barrett is the pachyderm in the courtroom. In electing not to hear the case, she reduced the court’s number to eight and enabled a deadlock. With no majority in the case, there was no opinion or precedent, and no disclosure of how individual justices voted. Back of the brief math suggests that one of the court’s conservatives likely sided with the liberal justices. That opacity is another baleful effect of Justice Barrett’s recusal. When Justice Barrett recused herself, we called it a “shocking stumble,” not the least because it set the stage for the deadlock that has come to pass. The court’s failure to make up its mind means that Oklahoma’s children will never glean the benefits of an education at St. Isidore of Seville Catholic Virtual School. There are no similar cases in the court’s pipeline, meaning that this frontier of religious liberty will remain unchartered. It would be hard to think of a better justification for what Chief Justice Rehnquist called the “duty to sit” than this case, Oklahoma Statewide Charter School Board v. Drummond. That duty is founded on the logic that unless disqualification is mandatory, hearing a case is required. There are no substitutes for Supreme Court justices, just as only the president is charged to “take care that the laws be faithfully executed.” Justice Barrett gave no reason for her recusal. Chief Justice Roberts, in the court’s 2023 Code of Conduct, writes that “the duty to sit and … the time-honored rule of necessity may override the rule of disqualification,” even in a circumstance where a jurist’s “impartiality might reasonably be questioned.” That’s the usual statutory standard for recusal. The Chief explained that “individual Justices, rather than the Court, decide recusal issues.”A Supreme Court watcher, Professor Joshua Blackman, tells us that Justice Barrett likely recused because of her ties to the Fighting Irish. Notre Dame Law School’s clinic brought the case on behalf of the Archdiocese of Oklahoma City, and Justice Barrett taught at the school and is still an adjunct there. A friend of hers, Nicole Garnett, is an adviser to the clinic and was an early counselor to St. Isidore. Slimmer reeds on which to rest a recusal are hard to find.Some blame for this non-result result is likely to be laid at the feet of Chief Justice Roberts, who could have been the vote that swung the court to 4-4 from 5-3. Even if that were true — and who knows if it is — the defining blunder still belongs to Justice Barrett. The plague of recusals, though, is larger than just her. This week no fewer than five justices recused themselves from a case involving a publisher. Will there be anyone left to judge?

Religious Liberty Loses at the Supreme Court 4-4

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