Supreme Court sidesteps religious charter school question for now on 4-4 deadlock

No religious charter schools. For now. Justice Barrett was recused. Also: Judge finds the Trump admin violated a court order with its South Sudan deportation effort.

In a bit of a surprise, the U.S. Supreme Court announced on Thursday morning that it could not reach a majority resolution on the case over the Oklahoma Statewide Charter School Board’s effort to establish the nation’s first religious charter school.

The 4-4 tie means that the Oklahoma Supreme Court decision holding that the charter school board could not approve a religious school’s application stands.

No religious charter schools. For now.

At the same time, however, the broader implications are little — and could be short-lived. The one-sentence ruling from the U.S. Supreme Court creates no new national precedent, and the tie was the result of Justice Amy Coney Barrett’s recusal from the case. A new challenge not requiring her recusal could easily return to the court in short order — especially now that the court has shown its interest in taking on the issue.

But, with Thursday’s decision, St. Isidore of Seville Catholic Virtual School’s application to become the nation’s first religious charter school cannot go forward.

The ruling came a little more than three weeks after the eight justices participating in the case heard arguments in the matter. Although she did not provide any reason for her recusal, Barrett presumably recused herself from considering the case because the Lindsay and Matt Moroun Religious Liberty Clinic at Notre Dame Law School, where Barrett taught, has represented St. Isidore’s in the case.

After the April 30 oral arguments in the case — which featured the unusual posture of St. Isidore’s and the charter school board both arguing to overturn the Oklahoma Supreme Court’s decision and Oklahoma Attorney General Gentner Drummond’s office arguing to uphold the ruling — it appeared the U.S. Supreme Court was poised to side with the school.

But, sometime over the past three weeks, whether immediately or in the time since, the justices decided that they would not be able to decide the case.

Once that decision was finalized, the court issued Thursday’s per curiam, unsigned decision.

Because of the way the decision was issued, we don’t even know who sided with the liberal justices to create Thursday’s tie vote. The facts that arguments were held on April 30, the court released decisions last week on May 15, and this was not among them does suggest that there was some question of whether the court would be able to reach a majority conclusion in the case, given that the court generally issues a ruling when it is ready.

It seems most likely that Chief Justice John Roberts sided with the liberals here to uphold the Oklahoma Supreme Court’s decision, based on the arguments and the justices’ past writings — but even that could have been as much of a vote to put off a decision as a substantive ruling on the matter. On the other side of the ledger, it is almost certain that Justices Clarence Thomas, Sam Alito, and Brett Kavanaugh voted with St. Isidore’s and the charter school board.

Whatever happened in the interim since arguments, by Thursday, it was clear: There would be no majority here.

As such, the “equally divided Court“ order was issued, and Justice Sonia Sotamayor’s warning of a nation where “the Free Exercise Clause trumps the essence of the Establishment Clause“ was averted for another day.

For now.

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The Trump administration violated a court order with this week’s flight

In a hearing on Wednesday, U.S. District Judge Brian Murphy ruled that the Trump administration violated his prior court order in ongoing litigation when it sent a flight out of the U.S. on Tuesday with people on it who it was seeking to deport to South Sudan.

In one of several orders that followed the hearing, Murphy noted that he had found that the defendants in the case over third country removals “violated the Preliminary Injunction entered in this case by failing to provide six non-citizen class members a “meaningful opportunity” to assert claims for protection under the Convention Against Torture before initiating removal to a third country.”

Although he made clear that he was still considering whether to hold anyone in contempt for the administration’s actions this week, Murphy, a Biden appointee, focused his Wednesday discussions and subsequent rulings on addressing what was going to happen to the people sent on the plane — which had landed at a military base in Djibouti — and what would be clearly expected of the government going forward.

In the remedy order, Murphy required that each of six people on the flight “be given a reasonable fear interview in private, with the opportunity for the individual to have counsel of their choosing present during the interview, either in-person or remotely, at the individual’s choosing,“ among other protections. The reasonable fear screening, Murphy ordered, could happen in the U.S., if the government returned the people here, or could take place abroad, “if at all relevant times DHS retains custody and control over the individuals in conditions commensurate to those the individuals would be housed in were they still in DHS’s custody within the United States.“

In his Wednesday order providing “clarification” about the preliminary injunction, Murphy noted that “no reasonable interpretation of the Court’s Preliminary Injunction could endorse yesterday’s events.” As a result, he clarified that any person who the administration is seeking to deport to a third country — a country other than their country of origin or another country in which they have legal status — “must be given a meaningful opportunity, and a minimum of ten days, to raise a fear-based claim for CAT protection prior to removal” (emphasis in original).

In other follow-up orders, Murphy sought declarations from officials in the coming days relating to issues that have arisen in the case.

Each declaration, he noted, is to be submitted “under the pains and penalties of perjury.”