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.
