As I Expected, SCOTUS 4-4's St. Isidore's Case With Barrett Recused (Updated)

And we still do not know exactly why ACB recused.

Shortly after the Court granted cert in St. Isidore of Seville v. Drummond, I wrote two posts about Justice Barrett's recusal. Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.

And so it has come to pass. The Court affirmed the Oklahoma Supreme Court with a 4-4 decision. I am reasonably confident that Justice Kavanaugh voted with the conservatives. And Chief Justice Roberts was with his progressive colleagues. Roberts cast his vote in Carson v. Maikin, but I doubt he would go much further.

Regrettably, we still do not know why Justice Barrett recused. Was it because Notre Dame University was involved? The Notre Dame religious liberty clinic? Or was this because of Nicole Garnett's involvement? If this concerns her friendship with Garnett, the recusal can directly affect some of the allegations against Justice Thomas. Who knows.

I am not aware that any other state has a similar school in the pipeline, so this issue will remain unresolved for some to come.

Update: A colleague flags that Barrett did not recuse in another case brought by the Notre Dame Religious Liberty Clinic. It doesn't seem that Garnett had any involvement with this case. As a general matter, a recusal is triggered at all stages--cert and merits. So if she did not recuse here, the clinic, standing by itself is not the cause of the recusal. Still, it is unclear to me whether Barrett's recusal in St. Isidore was due to the Justice's friendship with Nicole Garnett, or Barrett's connection with clinic through Garnett. Ultimately, I am not certain the cause of Barrett's recusal, but the clinic, standing apart from Garnett should not trigger a recusal.