In an unusual split decision, the U.S. Supreme Court upheld another court’s ruling barring the funding of a Catholic charter school in Oklahoma. In a per curiam opinion published late Thursday, four justices sided with the Oklahoma Supreme Court in barring the state from funding student attendance at St. Isidore of Seville Catholic Virtual School, while four justices disagreed. Justice Amy Coney Barrett recused herself from the case, resulting in the Oklahoma Supreme Court’s decision standing, although the U.S. Supreme Court’s split decision, while binding, does not establish legal precedent.

The case originated in late 2023, when Oklahoma Attorney General Gentner Drummond (R) filed a lawsuit to stop the Oklahoma Statewide Virtual Charter School Board from approving what his office said “would be the nation’s first religious charter school funded by public tax dollars.” Drummond cited a concern that the Catholic virtual school would be an instrument of “religious indoctrination” and warned that the board “violated the religious liberty of every Oklahoman by forcing us to fund the teachings of a specific religious sect with our tax dollars. … Oklahomans are being compelled to fund Catholicism.” He added, “Because of the legal precedent created by the Board’s actions, tomorrow we may be forced to fund radical Muslim teachings like Sharia law.”

Last summer, the Oklahoma Supreme Court ruled six to two that providing state funds for students to attend the school “would create a slippery slope and what the Framers’ warned against — the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.” Interestingly, Drummond’s lawsuit relied on arguments centered on the Oklahoma State Constitution, since the U.S. Supreme Court has ruled, in both Espinoza v. Montana Department of Revenue and Carson v. Makin, that taxpayer dollars can be used to fund or subsidize religiously-affiliated schools.

In comments to The Washington Stand, University of Notre Dame Law School Professor Nicole Garnett, director of the Notre Dame Education Law Project and an expert on education law and religious liberty, said, “Yesterday’s order affirming the Oklahoma Supreme Court was disappointing, but it has no precedential value, so the question presented — whether laws banning religious charter schools violate the Free Exercise rights of believers — remains unanswered. I am confident that those rights will be vindicated in a future case.” She continued, “The lower court’s decision was wrong. It deprived the Catholic Church in Oklahoma of the protections of the First Amendment, and it deprived students in Oklahoma of a new and innovative faith-filled educational opportunity.”

Barrett’s unexplained recusal from the case — she did not participate in the decision to issue a writ of certiorari, oral arguments, deliberation, or the final per curiam order — has been the subject of much heated debate. Although Barrett did not provide a reason for her recusal and is not required to, it has been broadly suggested that she recused herself due at least in part to her friendship with Garnett, who was an early legal advisor to St. Isidore of Seville Catholic Virtual School and is affiliated with Notre Dame’s Lindsay and Matt Moroun Religious Liberty Clinic, which represented the Catholic charter school before the U.S. Supreme Court. Barrett and Garnett both clerked for U.S. Supreme Court Justices in 1998 — Barrett for Antonin Scalia and Garnett for Clarence Thomas — and were later fellow faculty members at Notre Dame, for a period of nearly 17 years. Barrett threw a baby shower for Garnett when the latter was pregnant with her first child and is godmother to another of Garnett’s children.

National Review’s Dan McLaughlin suggested that Barrett “is tied closely enough” to Notre Dame’s religious liberty clinic “that she felt compelled to sit this one out.” However, he added, “That came at a real cost.” The National Review commentator speculated which of the Republican-appointed justices sided with the court’s Democrat-appointed minority, ultimately concluding that the world may never know. But, he added, “What we do know is that Supreme Court recusals have real national costs, which is why they should be used so sparingly.”

Judicial Crisis Network President Carrie Severino suggested that Barrett recused herself due to her friendship with Garnett, rather than her affiliation with Notre Dame more broadly, but noted that Garnett “was neither a counsel nor a party in the case.” Severino said, “It seems this goes beyond [Barrett’s] duty to recuse, which could have pernicious long-term consequences if other justices were to do the same.” The Supreme Court’s own code of conduct, Severino observed, explains that unnecessary recusal “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.” Severino quipped, “That is what happened here, and I fear it happened unnecessarily.”

Garnett has been an ardent proponent of parental school choice and the broader acceptance of Catholic charter schools for years and has written numerous articles and at least one book on the subject, “The Case for Parental Choice: God, Family, and Educational Liberty.” As a decades-long friend and close associate of Garnett’s, Barrett undoubtedly would have known this and may have thus recused herself from what could have been a monumental case deciding on an issue near and dear to her friend.

Barrett may also have recused herself due to her own Catholic faith. While the other Catholics on the bench — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Sonia Sotomayor — noticeably did not recuse themselves, Barrett and former Catholic University of America President John Garvey once co-authored a Marquette Law Review article arguing that Catholic judges should recuse themselves from cases where judgement would require them to violate their religious principles. However, that article was written in the context of capital punishment, a matter of Catholic moral teaching, rather than administration or education.

Regardless, Barrett’s recusal was almost certainly a result of the Supreme Court’s 2023 ethics code, which demands a justice’s recusal if only to avoid the appearance of a conflict of interest. Canon 3B(1) of the ethics code stipulates that a justice must recuse himself “in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” Although the ethics code is closely aligned with 28 U.S.C. § 455(a), which requires a judge to recuse himself in similar cases, the standard established by the Supreme Court’s ethics code is largely subjective, predicated more on the public’s perception of possible bias or a conflict of interest, rather than evidentiary grounds demonstrating such bias or conflict of interest.

The ethics code itself is at least partly the result of over a decade of partisan, progressive activism, starting in 2010. Thomas came under intense scrutiny after the Supreme Court decided the landmark Citizens United v. Federal Elections Commission (FEC) case, which largely deregulated aspects of campaign finance, lifting prior restrictions on political campaign donations from corporations and unions. When it was revealed that Thomas’s wife, Ginni, had founded a conservative political advocacy group (called Liberty Central) with Federalist Society executive Leonard Leo and billionaire Harlan Crow, activists began demanding that Thomas recuse himself from cases related to campaign finance, given his wife’s political activities and his seeming proximity to Crow.

Nearly a decade later, when the Supreme Court was deliberating over Bostock v. Clayton County, which eventually extended Title VII protections to cover sexual orientation and gender identity, the left-wing activist group Take Back the Court demanded that Alito and Kavanaugh recuse themselves from the case — and all LGBT-related cases — due to their supposed proximity to an organization defending natural marriage. Neither justice recused himself. Alito was joined by Thomas in dissenting from the majority and Kavanaugh wrote his own dissent.

Following the controversial 2020 presidential election, left-wing activists amplified their calls for Thomas and Alito to recuse themselves from numerous cases, predominantly those centered on allegations of election fraud and the January 6 protest at the U.S. Capitol building. Once again, Ginni Thomas’s political activities were cited as a concern. Alito’s wife, Martha-Ann, would also later be targeted and labeled a political activist due to flying an upside-down American flag in January 2021 and the Revolutionary War-era “Appeal to Heaven” flag in 2023.

Thomas’s and Alito’s connections to conservative-aligned billionaires and influential figures like Harlan Crow, Leonard Leo, and billionaire businessman Paul Singer were further scrutinized in 2023 when left-wing magazine Pro Publica alleged that the two justices illicitly concealed gifts or donations they had received from the individuals. Progressive groups funded by left-wing megadonors called on Roberts to force Thomas and Alito to recuse themselves from certain cases.

Roberts has long been concerned with preserving the legitimacy, integrity, and independence of the Supreme Court and, more broadly, the federal judiciary, especially as the expressly-political executive and legislative branches have become more politically polarized in recent years. When congressional Democrats, citing worries over perceived bias and alleged conflicts of interest stemming mostly from Thomas’s and Alito’s presence on the bench, introduced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, Roberts preempted congressional restrictions and secured the support of all eight of his fellow justices in approving the Supreme Court’s first-ever formal ethics code, the very one which requires recusal in the case of even the appearance of a conflict of interest, such as a close friendship with a law professor on the peripheries of what could have been a landmark decision.