Supreme Court Justice Amy Coney Barrett recused herself from a major case on religious freedom, in a potential setback for the Trump administration.
While Barrett did not provide an explanation, it is believed that she stepped aside because her close friend is connected to the Catholic charter school at the center of the case. Barrett's recusal increases the odds of a 4-4 tie, which would effectively block St. Isidore of Seville Catholic virtual school from opening.
Barrett has been close friends with Nicole Stelle Garnett since they were both clerks for the Supreme Court in the 1990s. Today, Garnett is a law professor at Notre Dame Law School, where Barrett studied law and continues to work as an adjunct professor.
“My hope is that it won’t go to a 4-4,” Garnett told The 74, a pro-school choice group. “My hope is that they wouldn’t have granted [a hearing] if they thought it might. But I know you don’t make assumptions about anything.”
The case pits dueling interpretations of the freedom of religion against each other. In a divided ruling, Oklahoma's Supreme Court held that St. Isidore's explicitly religious character violates the First Amendment's establishment clause, which bars the government from "respecting an establishment of religion."
Some court watchers say a favorable ruling for the school would upend the separation of church and state. But St. Isidore maintains that this is a case about discrimination against religious institutions.
"This Court has repeatedly held that the Free Exercise Clause prohibits a State from denying generally available benefits to a school solely because it is religious. That principle should have resolved this case," the school wrote to the Supreme Court.
The Trump administration is backing St. Isidore, arguing in a recent brief to the Supreme Court, "A state may not put schools, parents or students to the choice of forgoing religious exercise or forgoing government funds.”
Garnett has been a longtime advocate of the movement to establish religious charter schools, and she was an early legal adviser to St. Isidore.
Both Garnett and her husband are faculty fellows at Notre Dame's Religious Liberty Clinic, which is representing St. Isidore, although their names do not appear anywhere on the legal briefs.
While Barrett has sometimes ruled against Trump and his priorities, her religious conservatism might have led her to support St. Isidore's religious rights. Of course, with Barrett recusing herself, one can only speculate how she would have voted.
"Amy knows what Nicole did for this case,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston, who knows the Garnetts personally. “The case is so significant because it’s an application of both [the Garnetts’] Catholic faith and their views on constitutional law."
“I feel bad for Nicole,” Blackman added. “This is her life’s work, and it might go to a 4-4 decision.”
