Further Thoughts on Justice Barrett’s Recusal in Oklahoma Statewide Charter School Board v. Drummond
On Friday afternoon, the Supreme Court granted certiorari in Oklahoma Oklahoma Statewide Charter School Board v. Drummond, and the companion case, St. Isidore of Seville Catholic Virtual School. Shortly before sundown, I dashed off a fairly-rushed post that considered why Justice Barrett may have recused. After some reflection, I will provide further thoughts.
St. Isidore of Seville Catholic Virtual School is represented by lawyers from Dechert, Perri Dunn (an Oklahoma Law Firm), and the Notre Dame Religious Liberty Clinic. Justice Barrett is an adjunct professor at Notre Dame Law School. In 2023, she earned nearly $15,000 from the law school. If Notre Dame University was a party, Barrett’s affiliation with the University would trigger a recusal. (Justice Jackson, for example, sort-of-recused from the Harvard affirmative action case because she was on the Harvard Board of Overseers.) In theory at least, a ruling for, or against Notre Dame University could affect Barrett’s employer’s bottom line. But I do not think that a clinic affiliated with the school is sufficient to trigger a recusal. Moreover, Justice Kavanaugh was also an adjunct at Notre Dame in 2023, earning $25,000. And Kavanaugh did not recuse from the Oklahoma case. Many others judges also adjunct at Notre Dame; I do not think they have recused when the clinic has filed briefs in the circuit courts.
But we’re not quite done with the clinic. Nicole and Rick Garnett are both faculty fellows to that clinic, but their names do not appear anywhere on the briefs. It is possible that the Garnett’s connection to the clinic might not trigger Kavanaugh’s recusal, but would trigger Barrett’s recusal.
It is public knowledge that the Barretts and Garnett are extremely close friends. Barrett is the godmother of one of the Garnett’s children. Indeed, in 2023 ABC News made a fuss that Barrett co-hosted a baby shower for Nicole Garnett at the Supreme Court in the Justices’ spouse’ dining room. ABC News raised this point in the context of the Notre Dame Clinic’s amicus brief in Groff v. Dejoy, with the suggestion that Barrett had close ties. The suggestion was that Barrett should have recused from the case.
Did Barrett recuse because her dear friends were advisors to the clinic? If so, that recusal risk would pervade every single case the clinic works on. I deeply respect the clinic, and the work that they do. But it needs to be said that in any religious liberty case that could make it to the Supreme Court, Justice Barrett’s vote is likely needed. And there is no way to know, ex ante, which case may go upstairs. Indeed, there are already many such cases in the pipeline that could trigger Barrett
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
