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.
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