SCOTUS Grants Cert In Oklahoma Charter School Case, With Justice Barrett Recused

Today the Court granted review in Oklahoma Charter School Board v. Drummond. This is an important religious liberty case concerning "whether a state violates the First Amendment's free exercise clause by excluding privately run religious schools from the state's charter-school program solely because the schools are religious." The case should be argued in April.

However, Justice Barrett is recused. My best guess is the recusal is somehow related to Notre Dame Law Professor Nicole Garnett, who is Barrett's friend and colleague. Garnett has provided legal representation to the school, but as best as I can tell, her name does not appear on any Supreme Court brief. Justice Barrett did not explain the precise basis for the recusal, so we are left wondering.

I think this rationale matters. Is recusal justified solely based on a close friendship with someone who was represented a party in the case in unrelated matters, even if that friend is not counsel in the case? Or did Barrett have some personal connection with the school during her time?

Critics will seize on this precedent to attack Justices Thomas and Alito, without fail.

Update: I see that the Notre Dame Religious Liberty Clinic is on the brief for the St. Isidore plaintiff. Barrett is paid by Notre Dame University, but not the clinic. I don't see why this would force her recusal. Regrettably, this recusal may make it very difficult for the clinic to participate in other cases, because clients may fear that Justice Barrett will recuse should the case ever make it to the Supreme Court. And in any religious liberty case, Barrett's vote is likely needed.

Update (1/26/24): I offered some further thoughts on Justice Barrett's recusal here.

Comments

[A Japanese Student]

As I understand, this case is mostly about whether charter schools in Oklahoma are state actors. If they are, then Oklahoma should be allowed to determine whether they should be secular according to its own laws (setting aside the Establishment Clause issue). If they aren't, then it's a clear violation of Espinoza.

I personally believe that Espinoza was wrongly decided, that any state subsidy of religion would infringe on religious liberty just as much as state control of religion. Maybe because I grew up in a country with not one, but two, Blaine Amendments. Maybe because I think giving parents the choice to send their child to religious schools would violate the child's religious liberty.

[mulched]

You've got no kids, I guess.

[Satchmo_Lives]

Maybe because I think giving parents the choice to send their child to religious schools would violate the child's religious liberty.

Do you also think parents taking their 6 year old to church on Saturday/Sunday violates the child's rights?

How about making a child eat their vegetables or brush their teeth? Is it a violation of their rights as a citizen to choose what they eat and what they do to their bodies?

If you say no to one or both of the examples, where do you think the statutory line is drawn?

State Blain Amendments were born of 19th century anti-Catholic bigotry. SCOTUS ruled in Espinoza and Carson that states are not required to fund private education, but if they do, they can't deny the funds based on the viewpoint of the school. Giving money to every school who can meet standards is not the establishment of a particular religion.

[A Japanese Student]

Of course, that "liberty" isn't the kind of liberty that you enforce in a court of law. Perhaps more of a principle - that children should have the final say in whether to seek religious education.

re Blaine Amendment: that is an interesting story - I'm sure I've read that somewhere, right. In Japan, the issue that led to strict separation-of-church-and-state is State Shinto - which (among other things) promoted the Emperor as a supernatural being. The results are well-known in America - be it the Day of Infamy, Rape of Nanking, etc.

(Despite supposedly banning funding to religious organizations, however, the Government of Japan does actually give subsidies to students attending (religious or not) private schools. The reasoning is that religious schools still provide education in general. One of the everlasting interpretational disputes about Japan's Constitution.)

[Dr. Ed 2]

Blaine was a devout Protestant who didn't like Catholics, who also weren't of English ancestry. Hos house was across the street from the Maine State House and in 1879 he put cannons on his front lawn.

[JasonT20]

Blaine was a devout Protestant who didn't like Catholics, who also weren't of English ancestry.

More made up garbage, I think. Blaine was raised in a mixed Presbyterian/Catholic household, where his parents agreed that their sons would be raised in their father's faith (Presbyterian) and their daughters in their mother's faith (Irish-Catholic).

It is absolutely true that some of the support for the original Blaine Amendment (proposed while Blaine was Speaker of the House, but it failed to get 2/3 in the Senate) came from anti-Catholic (and anti-immigrant) sentiment, but to ascribe the entirety of the motivation and purpose of the idea to anti-Catholic views is a smear tactic. Unfortunately, it is a very effective smear tactic because of how completely the Republican Party managed to switch the narrative and draw in conservative Catholics to their side over culture war issues like abortion and same-sex marriage. (Blaine was a Republican going back to the founding of the Party, btw.) How quickly Republicans forgot their own history of anti-Catholic rhetoric aimed at JFK when they started taking aim at "the left" for it. That is probably why their aim is so wide of the mark.

[Satchmo_Lives]

It seems reasonable, to me anyway, parents should be able to raise their children with the principles they themselves hold: believing, one would hope, it is the best way to raise a child. When the children get older. and are capable of independent thought and a reasoned argument against a certain principle, the parents should take the opinion into consideration.

If a 15 year old child of anti-gun, teetotaler vegans makes a reasoned argument for having a .22 single shot rifle and being able to enjoy a Shiner Bock (the best reasonably priced Texas beer) after lawn work, do you think the parents should acquiesce?

[JasonT20]

If a 15 year old child of anti-gun, teetotaler vegans makes a reasoned argument for having a .22 single shot rifle and being able to enjoy a Shiner Bock (the best reasonably priced Texas beer) after lawn work, do you think the parents should acquiesce?

I'm not answering for anyone other than myself, but I would say that the parent always makes those kinds of decisions. If they don't want a gun of any kind in the house, or for their children to break the law and drink even small amounts of alcohol, then they get to make those rules. But a reasonable and fair parent wouldn't try and tell their child that they couldn't think those things or punish them for even asking for them. Like you said, part of raising a child into a successful adult is letting them stretch their own ability to think and form their own opinions.

[With Trump in, "now Lord you can let your servant go in peace"]

You are arguing on the basis of the totallly discredited Blaine Amendment view.
Schooling is for CHILDREN, will it benefit them,
WE are founded on profoundly Biblical principles and this case and the Lousiana 10 Commandments case only exist now because of how unlike we are to the culture of the Founders. So, eg, the 10 Commandments were ubiquitous in early schools.

[JasonT20]

WE are founded on profoundly Biblical principles and this case and the Lousiana 10 Commandments case only exist now because of how unlike we are to the culture of the Founders. So, eg, the 10 Commandments were ubiquitous in early schools.

Some of the Founders were religious and wanted the new government to advance (their) religion, while others were so solidly against any kind of religious establishment that they regularly got accused of being atheist, as if that was a crime.

Personally, I don't see any "Biblical principles" in the Declaration of Independence, the Constitution, or even things like the Federalist Papers where the most enduring arguments for the Constitution and its purpose were made by the Founders.

Even the most famous line from the Declaration, the only appeal to a religious belief in either that document or the Constitution is not "biblical" in its origin.

"...all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Where in the Bible is that level of equality expressed? Where is that degree to which people have a right to liberty and freedom from government expressed? Where is said that they have a right to pursue their own happiness in ways that don't cause anyone else harm, but that society might disapprove of?

And, seriously, now, how is a Ten Commandments monument not a violation of the Establishment Clause when the first few commandments are about worshiping God, only God, and in the right ways?

[Dr. Ed 2]

Japan is different. MacArthur sought to exterminate a religion.

[ReaderY]

Out of curiosity, do you also think that parents teaching their minor children how to talk (let alone read or right) before they reach the age of majority violates their First Amendment rights, because it violates their right to choose for themselves what language they choose to think and speak in? Given your logic, I don’t see how it couldn’t. Teaching children how to talk locks them into a particular way of thinking and a particular language community, thereby destroying their flexibility to become whatever they wish to be.

Fortunately, to paraphrase Pierce of Society of Sisters. we don’t live in a country where the state is the party with primary responsibility for safeguarding children’s rights.

[With Trump in, "now Lord you can let your servant go in peace"]

Not sure why you prefaced that with " I personally believe" all beliefis personal and what you say after that is obviously from you !!

I KNEW you were going to deny a fact of Western History and Natural Law and parental common sense. OF COURSE you are wrong that you should decide my child's religious upbringing. Japan was where they gleefully tortured missionaries and Christians, with pure glee.

IF I Google searh REASON will I find even one reference to ZORACH. The Schempp decision utterly eviscerates your position . And frankly I am disgusted that in the name of liberty you would "liberate" a 5-year old from the parents. A child wants whatever the parent has found helplful :In health,in learning, in manners, in regulation of life,and esp in religion !!!!!!

"the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe” (Zorach v. Clauson)."

[JoeFromtheBronx]

The comment about Alito and Thomas is somewhat gratuitous.

We can criticize Barrett alone. The liberals provide an explanation when they recuse, citing an ethical guideline. Why can't the conservatives do the same thing? Why the mystery?

A consistent approach, with explanation, would allow everyone to be happy. OTOH, this way JB can feel aggrieved his favorite justices are being unfairly attacked.

BTW, as usual, Amy Howe provides a helpful explanation of the order. Hopefully, her husband's legal problems won't interfere with her legal reporting.

https://amylhowe.com/2025/01/24/supreme-court-will-weigh-in-on-effort-to-found-nations-first-religious-charter-school/

[With Trump in, "now Lord you can let your servant go in peace"]

But you make the further error that everybody is this one unitary monolithic conservative or one unitary monolithic liberal. That is not sane. Just the history of concurrences and dissents should disabuse you of such a shallow analysis . after all it was Gorsuch who gave us the abomination of BOSTOCK 🙂

And you give a pass to the leanings of the reporter that you don';t give to the judges. Did you catch that anybody? "hopefully...won't interfere "

[Drewski]

I think recusal without explanation is fine. If a private matter creates a potential conflict and recusal would force the justice (or judge) to reveal it, then there would be an incentive to avoid recusing. This is especially true in borderline cases where a justice might choose to err on the side of caution otherwise.

I don't imagine it will lead to a slippery slope of justices no-comment-recusing out of laziness or to avoid controversial cases.

As to it potentially reflecting poorly on Alito and Thomas, that's complaining that a coworker follows the rules and makes everyone look bad. It's the bad employees who are bad, not the good ones. Mostly it makes me wonder what unethical things Blackman does to avoid making his colleagues look bad.

[JoeFromtheBronx]

I'm not sure what "private" matter this would be.

They merely have to say they have a personal or professional relationship with the person. They don't have to provide intimate details that would embarrass them.

They don't have to openly discuss their decision-making in each case, including when they don't recuse. People will debate close calls when they don't recuse regardless.

A relationship can be a range of things that people would not assume is problematic such as a professional or educational connection. In a few cases, not saying might lead people to wrongly assume the reason.

The liberals cited the ethical guideline as a way to help show the public that the justices were able to self-regulate given the public controversies about that subject.

[With Trump in, "now Lord you can let your servant go in peace"]

I tell my college students that teachers do 2 things in regard to the influence of their personal views on class material :They bite their lip and say "I'll try real hard not to bias anything I say" [ useless in most cases] or I will put my views out on full display so they can decide -- and that is what I've always done.

[Drewski]

"I'm not sure what "private" matter this would be."

Are you absolutely certain you're clear on what the word "private" means?

"People will debate close calls when they don't recuse regardless."

That would be a neat trick. You sure your best argument is, "If a justice fails to recuse over a potential conflict nobody knows about, people will debate it?" Do you understand the problem with this? I was joking earlier but I'm beginning to think you literally do not understand that private things are not known to the public.

"In a few cases, not saying might lead people to wrongly assume the reason."

Who cares if they do?

[JoeFromtheBronx]

I still don't understand why merely noting a "personal relationship" or "professional relationship" (assumed to be the case here) led to a recusal will cause problems here.

They are not exposing intimate details -- private details they have a right to keep private -- by saying that. As to the public debating, yes, the debate doesn't mean the public knows every single thing the justice was considering.

There still will be lots of cases the public will know about or might know about. How many "borderline cases" of recusal truly involve totally private information? And the loads of cases that the public will debate about will affect the justices' judgment on the few cases the public might not know about. In part since -- like Alito's flags -- justices know few things are truly private these days.

We should care about the public wrongly assuming because it would lead to distrust of the judiciary. We should try to avoid that as much as possible.

[Don Nico]

Joe,
One ought to be thankful that an official does enough introspection to recuse. I don't see why s/he has any obligation legal or moral to explain to the curious. I have just recused on an institutional disciplinary case. The presiding officer knows and accepts my reason; no one else has a need to know my reason.

[Drewski]

Exactly my thoughts. And while there may be speculation, there will always be speculation regardless of public statements. Some will be valid and some will be crackpot conspiracies.

[JoeFromtheBronx]

One ought to be thankful that an official does enough introspection to recuse.

The law ethically and legally requires federal judges to recuse in various cases. I don't think we "ought to be THAT thankful" for them following ethical and legal requirements.

I don't see why s/he has any obligation legal or moral to explain to the curious. I have just recused on an institutional disciplinary case. The presiding officer knows and accepts my reason; no one else has a need to know my reason.

A justice recusing can result in a 4-4 tie. It can result in the failure to take a case (four justices have to vote to take a case for full argument; a recusal can mean only three do.)

It has potential effects on the parties and the law. I also explained (I acknowledge your disagreement) that openness will help the public have more respect for the judiciary.

They will see how the justices are carefully deciding to recuse with an explanation of when they do. This isn't a purely personal decision. It is a public one.

In this case, contrary to yours, the "presiding officer" doesn't even have to know why a justice recuses or doesn't recuse. It is purely their own decision. It doesn't meet that minimal test.

An internal overseer that "knows and accepts" recusal decisions could very well be a useful device. Such checks were discussed when binding ethical rules were proposed.

[With Trump in, "now Lord you can let your servant go in peace"]

The judge who decides a case against a murderer who threatens him should surely be more apposite to your argument,. Parents don't recuse themselves in far more emotional and self-incriminating matters 🙂 Drugs are bad , son, and premarital sex can destroy any chance of later marital happiness. -- But , Dad, you've been divorced 3 times and had several run-ins with the law over drugs when you were my age, you have to recuse yourself.

[Dr. Ed 2]

Qua Professor, she likely was a volunteer legal advisor to the Catholic Church and doesn't want deal with accusations that the Pope is the 10th member of SCOTUS.

[Noscitur a sociis]

Likely.

[With Trump in, "now Lord you can let your servant go in peace"]

YOu sound so stupid...it makes me chuckle. If I show your post to my students they scoff at you.
Plus you don't follow current affairs. Watch the non or even anti-religious Dawkins with how he treats the women he once thoght the greatest female atheist in the world, Aayan Hirsi Ali.

One's convictions in important matters are the opposite (usually ) of how you always characterize them. To you your favorite cusine is a defensible opinion, but your religion, not at all.
SILLY really , just childishly silly

[JasonT20]

I think recusal without explanation is fine. If a private matter creates a potential conflict and recusal would force the justice (or judge) to reveal it, then there would be an incentive to avoid recusing. This is especially true in borderline cases where a justice might choose to err on the side of caution otherwise.

Judges only need to recuse when: an actual, material conflict of interest arises, their personal views about the case or its underlying issues make it difficult for them to remain unbiased, their personal relationships with people involved in the case would make it difficult for them to remain unbiased, or the appearance of any of those factors would cause the parties or the public to doubt their objectivity.

That makes it important for the judge to disclose why they are recusing, even if only in broad terms that don't reveal who they had a personal relationship with on the case, what their personal finances are that would be affected by the outcome, which of their personal views might affect their objectivity, and so on. I do think that they should go into some detail, though. That would be an example of ethical conduct that would help set norms that other judges would feel obligated to follow. But, I suppose there is some room for discretion on that.

[David Nieporent]

I think recusal without explanation is fine. If a private matter creates a potential conflict and recusal would force the justice (or judge) to reveal it, then there would be an incentive to avoid recusing.

I disagree. Justices have an obligation not to recuse unless it's justified, so they owe it to us to explain why they're not doing their job. And I am hard pressed to think of a "private matter" that would require recusal and be so embarrassing that it would cause them to decide not to. Obviously the vast majority of recusals are either (a) participated in the case before the justice was on the bench; or (b) financial interest in some way. Neither one would be sensitive. Other than that, what else is there? Close personal relationship with one of the parties? Unless the justice is secretly having an extramarital affair with the CEO of the petitioner or something, why would that be something that they couldn't disclose?

[MollyGodiva]

A Catholic public school is clearly "establishment of religion" that is expressively forbidden. This should be a very easy case. However, the school will win.

[With Trump in, "now Lord you can let your servant go in peace"]

It is clearly not. There is no Catholic algebra or chemistry or computer science, etc. and where there is a Catholic view (eg history or maybe even Economics) there is always a view. Would a Libertraian teacher not know Mises, Hayek, Buchanan.

It is only by prescinding from the only question that matters (Does this help children) that this argument comes up.

[MollyGodiva]

But they will only hire Catholics (maybe some other Christians) to teach the secular subjects, and allow them to bring Catholicism into even secular courses.

[JasonT20]

Why have a Catholic school if it isn't going to teach anything to students that is specific to Catholic beliefs? It is not plausible that a religious school would only provide a secular education. I can't think that your argument is genuine here.

[With Trump in, "now Lord you can let your servant go in peace"]

But legally it is not clearly that at all. That would legally and logically make a public school that follows your starndards a religious school. This is clear to anyone who thinks about it but also legally

" the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe” (Zorach v. Clauson)."

[With Trump in, "now Lord you can let your servant go in peace"]

If it were expressly forbidcen you would have quoted that and not just asserted that it is expressly forbidden. In a debate, a grad school research paper, or in a courtroom you would be censured for your dishonest pomposity.

[SRG2]

And in any religious liberty case, Barrett's vote is likely needed.

Oh what a giveaway.

[JoeFromtheBronx]

It's also silly. The Supreme Court regularly votes at least 6-3 in these cases.

[With Trump in, "now Lord you can let your servant go in peace"]

Good point,but even more , in those cases you allude to there are dissents and concurrences citing different reasons even for agreeing. And we know what that means

“The last act is the greatest treason. To do the right deed for the wrong reason.”
― T.S. Eliot

[With Trump in, "now Lord you can let your servant go in peace"]

Not at all. To say she has great background and interest and experience in X is certainly not to say that for that reason we need someone who after tons of involvement doesn't yet have any settled thoughts on the subject !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[SRG2]

You're eliding between her experience and her vote. Now resubmit your response.

[With Trump in, "now Lord you can let your servant go in peace"]

You misused 'eliding' but I think I know what you are suggesting.
To know that her vote deviates from her experience is something you CANNOT know.
I gladly submit such illogical statements to deserved public scorn 🙂

[Mark Leen]

I believe Justice Barrett previously taught at the clinic. Perhaps she gave them advice or discussed the particular issue of charter schools woth them previously, so decided to recuse.

[ReaderY]

This case does tend to suggest that if a case might be close and Justice Barrett’s vote might matter, the best thing Notre Dame-affiliated folks can do for their clients is stay out of it.

[Carlos Inconvenience]

Amy Karen Barrett us better than Ginsberg or another democrat appointee but not by much.

[With Trump in, "now Lord you can let your servant go in peace"]

again that is pointless and illogical. Better can mean at least 3 things.
She knows the law better
She expresses herself better
She is morally better.

Ginsberg was terrible in a very obvious way that deviates hugelly from ACB
"Ginsburg finds our Constitution irrelevant to the Egyptian experience of drafting a new constitution, when many parallels exist between our revolution and the Egyptians’."