The Supreme Court may be headed for a 4-4 split in a case that tests the constitutional legalities of religious charter schools.

The high court heard several hours of oral arguments Wednesday in the case of Oklahoma Statewide Charter School Board v. Drummond, and each participating justice, except for Chief Justice John Roberts, gave clear indications of how they will vote in the case.

The school

St. Isidore of Seville — named for an unofficial patron saint of the internet — is a virtual Catholic charter school operating in Oklahoma that was established by the diocese of Tulsa and the Archdiocese of Oklahoma City. Under state law, charter schools must be nonreligious “in their programs, admissions policies, and other operations.” The school projects an initial enrollment of 500 students with the expectation of reaching 1,500 students by 2028, half from lower-income families.

Per the school’s handbook, it provides a “robust Catholic education” to all attendees and is open to both Catholic and non-Catholic students.

In 2023, the charter school board approved St. Isidore’s application for the following school year, but Oklahoma’s Republican attorney general and current gubernatorial candidate, Gentner Drummond, sought and obtained a court order from the Oklahoma Supreme Court directing the board to invalidate its contract with the school. The court reasoned that as a public school, St. Isidore is required to be nonsectarian under Oklahoma’s charter school law, and that the rule comports with both the Oklahoma Constitution and the establishment clause of the U.S. Constitution, both of which prohibit the use of public funds for religious institutions.

Love true crime? Sign up for our newsletter, The Law&Crime Docket, to get the latest real-life crime stories delivered right to your inbox.

St. Isidore appealed the decision and argues that the school provides a “much-needed opportunity for many Oklahoma children who lack robust educational choices or find traditional schooling difficult due to learning differences.”

The justices face important questions of law

The justices now consider two questions. First, whether the actions of St. Isidore’s, a free, privately-run school, constitute “state action” simply because of its charter school contract. And second, whether the First Amendment’s free exercise clause is violated by Oklahoma’s exclusion of St. Isidore’s from its charter school program.

The ruling has far-reaching potential to affect charter schools across the nation. Further, because it sets up something of a contest between the establishment clause — the section of the Constitution that ensures separation of church and state via a prohibition of government endorsement of a religion — and the free exercise clause — the section that prohibits the government from making laws that impede the free exercise of religion — the consequences threaten to reach even beyond schoolhouse walls.

A split court

During the marathon oral arguments, the Court’s most conservative justices signaled an overt willingness to rule in favor of St. Isidore’s and against Oklahoma. Meanwhile, the Court’s liberal flank predictably pushed back on the legality of permitting government funding for a religious school.

Justice Elena Kagan framed the issue as a court-sanctioned power for a charter school to simply ignore rules with which it disagrees.

“These are state-run institutions,” Kagan said, and argued that allowing this Catholic school to receive a charter despite Oklahoma’s rule against it would amount to giving St. Isidore’s — and by extension, other schools — to simply “strike” portions of state law with which they disagree.

Likewise, Justice Sonia Sotomayor was highly skeptical of the idea of allowing government-funded religious charter schools.

“I think the essence of the establishment clause was, ‘We’re not going to pay religious leaders to teach their religion,”” said Sotomayor to attorney James Campbell for the state’s charter school boards. “Really, what you’re saying is the free exercise clause trumps the establishment clause.”

In colloquy with attorney Campbell, Sotomayor pushed back on the argument that history favors St. Isidore’s position.

“Using history in this case is crazy,” the justice snapped, “because during early history, no one thought there was an obligation of the government to provide funding [for schools] at all.”

“We don’t use the history of segregation to interpret the equal protection clause now,” she continued. “I doubt very much we would use that history of the federal government funding the churches to teach Indian children and convert them as proving anything about the free exercise or establishment clause now.”

Justice Ketanji Brown Jackson similarly argued that Oklahoma’s wish was to set up secular private schools, and that it is allowed to do so, despite the fact that St. Isidore’s disagrees.

“So it’s not being denied a benefit that everyone else gets,” said Jackson.

But several times over the course of the proceedings, Justice Brett Kavanaugh signaled that he sees it differently.

“All the religious school is saying is don’t exclude us on account of our religion,” remarked Kavanaugh, who elaborated at length that religious institutions should not be excluded from doing what secular institutions can do.

Justice Neil Gorsuch appeared to be convinced that the charter school is not a government entity, given the lack of supervision by a local school board, thereby circumventing any constitutional issues relevant to government action.

Justice Samuel Alito left little doubt as to where he stands on the case. While questioning Gregory Garre, who argued the case on behalf of Drummond, Alito said that the Oklahoma attorney general’s office was “motivated by hostility toward particular religions.” To underscore his point, Alito pointed to Drummond’s statements that many Oklahomans would support Christian charter schools, but would be less likely to approve similar applications from schools of other faiths.

“We have statement after statement by the attorney general that reeks of hostility toward Islam,” Alito said to Garre.

“That’s entirely incorrect, your Honor,” responded Garre, arguing that Drummond’s statements merely warned of tensions to come if a Catholic charter school was allowed to operate.

Alito also commented on Oklahoma’s “unsavory discriminatory history,” and Garre expressed doubt that Oklahoma’s constitution showcased animus against Catholic immigrants.

Rather, Garre offered, Oklahoma’s separation of church and state was likely motivated by the government’s “Christianization” of Native American children.

Alito, who has often spoken of religion being “under attack,” doubled down and asked, “Do you think that anti-Catholic bigotry had disappeared from Oklahoma by 1907?”

With Justice Amy Coney Barrett, a Trump appointee, recused from the case, due to a friendship with a professor who advised St. Isidore, the outcome could come down to Chief Justice John Roberts, who did not show his hand clearly. He said early in the arguments that the Supreme Court’s previous rulings dealt with a less significant mixture between state governments and schools than the current Oklahoma cases involve. Should the Supreme Court split 4-4, it means the Oklahoma Supreme Court’s ruling against St. Isidore’s would stand, and for the immediate future, religious charter schools would be disallowed.

The Federal Circuit, located in Washington, D.C., has exclusive nationwide jurisdiction over a variety of subject areas, as well as a statutory requirement to provide citizens with reasonable opportunities to appear before the court. This creates a unique opportunity to hold oral arguments outside of D.C., including most recently in the San Francisco Bay Area and in Boston later this fall.

“The court believes that by engaging with the public through this program it can promote transparency and increase public trust and confidence in the Federal Circuit and the Judiciary,” Moore said.

Federal courts of appeals across the country regularly conduct special sittings at law schools to provide law students with real-life exposure to a sitting panel of judges, lawyers presenting oral arguments, and the briefing in real cases. A question-and-answer session often follows oral arguments as law students are able to gain valuable insights into career paths in the justice system.

1. Home
2. Daily News
3. Expected noncompliance with court orders…

U.S. Supreme Court

Expected noncompliance with court orders shouldn’t defeat standing, Kavanaugh says in DNA-test arguments

By Debra Cassens Weiss

February 25, 2025, 11:08 am CST

The U.S. Supreme Court appeared divided Monday in arguments over a death row inmate’s quest for a DNA test to show that he wasn’t inside a trailer where robbery accomplices killed an 85-year-old woman.

Justice Brett Kavanaugh was among the justices appearing sympathetic to Texas inmate Ruben Gutierrez’s bid for testing to establish that he didn’t deserve the death penalty for the 1998 murder, report Courthouse News Service, Law.com, SCOTUSblog and the New York Times.

Kavanaugh wrote the 6-3 Supreme Court decision in 2023 that allowed Texas inmate Rodney Reed to pursue a DNA test.

The issue in the Reed case was whether the statute of limitations barred his request for a DNA test in his federal civil rights lawsuit. Before reaching the issue, however, the Supreme Court said Reed had sufficiently alleged an injury that would be redressed by a finding that state DNA testing procedures violate due process.

In Gutierrez’s case, the issue is whether Gutierrez had standing to challenge Texas statute that allows postconviction DNA testing only when it could lead to an overturned conviction. The law does not allow testing when it affects only the sentence, as in Gutierrez’s case.

Texas argues that Gutierrez doesn’t have standing to bring a due process challenge to the statute because he would still be eligible for the death penalty under Texas law and wouldn’t be entitled to the test.

Texas law permits a capital murder conviction in a robbery scheme even if other accomplices killed the victim and even if the defendant didn’t anticipate the murder.

Lawyers for Gutierrez, on the other hand, argue that jurors would not have sentenced Gutierrez to death if DNA showed that he was not in the home and that he wasn’t a “major participant” in the crime. They also argue that courts don’t have to determine whether state officials would redress Gutierrez’s injury if courts were to declare the statute unconstitutional.

Kavanaugh “appeared to take umbrage at the suggestion” that prosecutors might not allow DNA testing even if the Texas statute is found unconstitutional, according to Law.com.

SCOTUSblog reported on Kavanaugh’s comment.

“I just don’t see,” he said, “how we can say something’s not redressable just because the prosecutor is going to say I’m not going to comply with a court order. You know, if President Nixon said I’m not going to come turn over the tapes no matter what, you wouldn’t say, ‘Oh, I guess we don’t have standing to hear the executive privilege case.’”

Courthouse News Service points out that Kavanaugh’s comment comes following suggestions by Vice President JD Vance that presidents could ignore court orders that interfere with their lawful exercise of power.

The case is Gutierrez v. Saenz.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. 5th Circuit becomes ‘proving ground’ for…

Judiciary

5th Circuit becomes ‘proving ground’ for aggressive arguments by conservatives

By Debra Cassens Weiss

September 4, 2024, 8:59 am CDT

The 5th U.S. Circuit Court of Appeals at New Orleans has become “a proving ground for some of the most aggressive conservative arguments in American law,” according to the New York Times.

When the U.S. Supreme Court overturned the right to abortion in June 2022, for example, the 5th Circuit had teed the case up for Supreme Court review, the New York Times reported last week.

In the term beginning this fall, the Supreme Court has agreed to hear five 5th Circuit cases, including a decision challenging the regulation of untraceable “ghost guns” that are made with kits.

The 5th Circuit’s decisions have been “so audacious” that the Supreme Court overruled the appeals court seven times last term, according to the article.

Overturned decisions would have curbed access to the abortion drug mifepristone, would have allowed gun possession by domestic abusers, and would have allowed states to sue over U.S. social media pressure.

Six of the 5th Circuit’s 17 judges are appointees of former President Donald Trump, who appointed 54 appeals court nominees, the most of any president since former President Jimmy Carter, the article reports.

According to a article in the Texas Tribune, the 5th Circuit’s adoption of conservative positions, even when overturned, helps shift the debate to the right.

Decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall,” said Steve Vladeck, a professor at the Georgetown University Law Center, in an interview with the Texas Tribune.

Even when conservative decisions don’t prevail, “the effect is to make these cases of national import and give credibility to those arguments,” Vladeck said.

Akhil Reed Amar, a professor at Yale Law School, told the New York Times that the 5th Circuit’s conservative opinions could stem partly from appellate judges jockeying for a nomination to the Supreme Court.

“If you’re MAGA and you think Donald Trump is going to win the election, you can be in the right lane or hard-right lane,” Amar said. “The hard-right lane is the better lane to be in if you want to get yourself nominated.”

Former president Donald Trump on Wednesday filed long-anticipated reply briefs arguing why the charges against him should be dismissed in the Mar-a-Lago classified documents case.

In two separate filings, attorneys representing the 45th president again asked U.S. District Judge Aileen Cannon to drop the charges.

The briefs direct their focus on recent arguments against dismissal made by special counsel Jack Smith – and come on the eve of a hearing in southern Florida dedicated to hashing out those issues.

1. Home
2. Daily News
3. Supreme Court will hear arguments on whether…

U.S. Supreme Court

Supreme Court will hear arguments on whether to stay EPA’s ‘good neighbor’ rule

By Debra Cassens Weiss

December 22, 2023, 9:22 am CST

The U.S. Supreme Court will have oral arguments in February to consider an emergency petition to stay the U.S. Environmental Protection Agency’s “good neighbor” rule, which is intended to curb pollution that drifts to downwind states.

The high court agreed Wednesday to consider a stay in four consolidated cases brought by energy companies, trade groups and the states of Ohio, Indiana and West Virginia, the New York Times reports.

Other publications with coverage include SCOTUSblog, Law.com and the Washington Post.

“The court’s brief order did not suspend the program in the meantime or add the case to the court’s merits docket,” the New York Times reports. “Oral arguments in cases that reach the court by way of an emergency application, as in this case, are quite rare.”

Steve Vladeck, a professor at the University of Texas School of Law, has said since 1971, the Supreme Court has had oral arguments on emergency applications only twice before, according to Law.com. Both cases involved challenges to the Biden administration’s COVID-19 policies, Vladeck said in a post on X, formerly known as Twitter.

The Supreme Court’s order allows the EPA case to also continue in the U.S. Court of Appeals for the District of Columbia Circuit, where opening briefs are due Jan. 26, SCOTUSblog reports. The appeals court had refused to stay the plan while it considers the challenge.

The rule required states to curb smog-causing nitrogen oxide that affects other states. Twenty-three states failed to persuade the EPA that its plans were adequate. In the litigation that followed, all seven federal appeals courts hearing challenges blocked the EPA action in 12 of those states, according to the New York Times.

Ohio has argued that mandated cuts “are potentially unachievable” and could leave the state with insufficient electrical generating capacity, according to the Washington Post.

The United States argues that imposing a stay “would impose negative health consequences and additional regulatory burdens on downwind states and their citizens—thus violating the central aim of the good neighbor provision.”

The cases are Ohio v. EPA, Kinder Morgan v. EPA, American Forest & Paper Association v. EPA and U.S. Steel Corp. v. EPA.