Meagan Hatcher-Mays On MeidasTouch Legal AF Podcast: SCOTUS Is “Playing a Game of Supremacy”
OKPLAC, Inc. v. Statewide Virtual Charter School Board Victory Is Temporary, as Roberts Court Paves the Way for Future Cases
Washington, D.C. — Last week, the Supreme Court released a deadlocked, 4-4 decision maintaining a lower court ruling that blocked St. Isidore of Seville Catholic Virtual School from becoming the nation’s first religious public charter school. But while the decision seems like a victory for the separation of church and state — an ideal enshrined in the Constitution — the evenly divided Court signals to right-wing attorneys that the fight is not yet over. On Tuesday, United for Democracy Senior Advisor Meagan Hatcher-Mays joined Court Accountability Co-founder and Executive Director Alex Aronson on the Legal AF podcast to discuss why OKPLAC, Inc. v. Statewide Virtual Charter School Board gives us less reason to celebrate than we think.
KEY POINT: “Even when the court does the right thing… state legislators feel emboldened to pass legislation that's pretty clearly in violation of sort of a bedrock constitutional principle… and the reason that right-wing attorneys feel emboldened to bring legal challenges is because the Supreme Court is so extreme. They feel like, ‘Yeah let's test this. It's worth testing this out because we think we can win.’ Even if they don't win, the narrative gets pulled so far to the right on what is and isn't acceptable that that's still a victory for these religious right-wing attorneys that bring these cases. That's the environment in which this case is bubbling up. This is not some grand victory, this is a problem that state legislators think, ‘Oh yeah, let's just get rid of church and state separation and place all bets on winning at the Supreme Court,’ because there's a good chance that they will one day.”
Legal AF: Why did Justice Barrett BACK DOWN in MAJOR SCOTUS Case?!?
May 27, 2025
Alex Aronson, Court Accountability:
Well, what still exists of the establishment clause has lived to live another day as the Supreme Court, in a 4-4 Per Curium opinion, signed in the “big religious liberty case,” as the right is framing it. The attack on the establishment clause, the effort to have public taxpayer funded religious charter schools, fell flat at the Supreme Court with Justice Amy Coney Barrett recused. Supreme Court deadlocks 4-4, preserving the ban on the nation's first religious charter school. The court's split means an Oklahoma Supreme Court ruling barring the state from approving a Catholic charter school remains in place.We're going to get into the reasons for her recusal, what her recusal means for the future of the establishment clause or doesn't. This is a case coming out of Oklahoma where the very conservative Oklahoma Supreme Court had smacked down this effort to have public funding of this virtual religious school. The incredibly conservative Oklahoma Attorney General argued against this religious school. Nevertheless, the religious plaintiffs pressed on, brought the case to the Supreme Court, had it granted, and I think after a run of cases by the court gradually incrementally stripping back the establishment clause to allow public funding of of various religious institutions, was poised to do this, but for now at least, the separation of church and state can still be said to exist on some level.
To dig into this important development and all the dynamics behind it, I'm thrilled to be joined again here on Legal AF with Court Accountability by my friend and partner, the great Meagan Hatcher-Mays, back by popular demand from United for Democracy, the powerful coalition fighting to reign in this court. Megan, welcome back. How are you processing this big news out of the court this morning?
Meagan Hatcher-Mays, United for Democracy:
Yeah, well, thanks for having me. I mean this is big news, it's a little bit surprising. I think, you know, many of the justices — especially of the conservative variety or the more right-wing MAGA variety — are were expected to kind of weigh in in favor of expanding what they call religious liberty but is really just a way to kind of funnel public resources to parochial schools and to religious institutions.
As you mentioned, Amy Coney Barrett had to recuse. I'm not totally sure why that is because they don't have to say. They don't even really have to recuse but she did. She didn't really say but it's — folks assume it's because she used to work at Notre Dame Law School and she was a part of this religious liberty clinic, and that clinic is representing one of the plaintiffs in this case. So that's likely the reason why she recused. So it ended up in this four-four tie, which doesn't happen very often, but when it does — when there's a tie, whatever the court right below the Supreme Court decided — that holds as whatever they decided. So the Oklahoma Supreme Court had decided that this public charter school that was Catholic was a violation of the establishment clause. They had some First Amendment concerns with this setup. So that ruling from the Oklahoma Supreme Court stays in place.
My takeaway from this is, again, it's surprising but I wouldn't overcelebrate this quasi-victory. First of all, a 4-4 tie is pretty crazy since, on its face, creating a public school that is a Catholic school seems sort of facially unconstitutional. You shouldn't need to hire fancy, well-paid lawyers to work that one out. But I think what's concerning is that this case exists at all. You know, I think that one of the reasons that — even when the court does the right thing, I think folks should understand the reason that state legislators feel emboldened to pass legislation that's pretty clearly in violation of sort of a bedrock constitutional principle, which is that we have a separation of church and state in this country. The reason legislators feel emboldened and the reason that right-wing attorneys feel emboldened to bring legal challenges is because the Supreme Court is so extreme. They feel like, “yeah let's test this. It's worth testing this out because we think we can win.” Even if they don't win, the narrative gets pulled so far to the right on what is and isn't acceptable that that's still a victory for these kind of religious right-wing attorneys that bring these cases. That's the environment in which this case is bubbling up. This is not some grand victory, this is a problem that state legislators think, “oh yeah, let's just get rid of church and state separation and, you know, place all bets on winning at the Supreme Court,” because there's a good chance that they will one day.
Alex:
And they did have a good chance here, and I think this issue of Barrett's recusal and some of the other ethics and transparency issues evoked by this decision are important in sort of sussing out what happened here and also what's likely to happen down the road. They did have a good chance. They had four votes. We don't know which four votes. The lack of transparency on its face from this one sentence per curium order. We can assume, I think, that the three liberal justices were part of the four to affirm the Oklahoma Supreme Court. We don't know which of the right-wing justices joined them, probably Roberts or maybe Kavanaugh. Maybe Kavanaugh. I don't know. I guess we just have to guess. They don't have to tell us.
Meanwhile, Barrett, I think, deserves some credit here for recusing herself based, we think — again, she didn't explain it — on these associations with the law clinic from Notre Dame representing the religious school in this case. But that same clinic has deep ties with Justice Alito, who, as we were discussing, you brought up before we started taping, has taken trips that were funded by this clinic. He doesn't think the law applies to him. He doesn't think the federal statutes requiring his recusal where his appearance might reasonably be questioned apply to him because nobody can make him do anything. And so, here we are with this 4-4 posture on an issue that this right-wing legal ecosystem is going to continue to press, no doubt. And on the next case, which I think we should expect not to be handled by this Notre Dame religious liberty clinic with a recusal worthy conflict for at least Justice Barrett. We can't expect Justice Amy Coney Barrett to recuse in that case because I think that the justices have such a narrow conception of what requires their recusal that it won't be implicated next time. So even though this very same school, the very same clinic, will have interests at stake in this next effort that we can expect to take out the establishment clause, to green light public funding of religious schools, you know, she’ll be on that majority, and I think we have a pretty good sense of where she'll land on it.
Meagan:
Yeah, I mean and also this is a court that, again, they're inviting these challenges by the way that they rule. Maybe they didn't rule the worst possible way this time, but they have. Just in the last two-three years, they have ruled that wedding vendors are allowed to discriminate against gay couples based on religion, and schools have to accommodate school prayer with this football coach in Bremerton, Washington. So basically, they're expanding where religion can live in public spheres of life. It was really not a foregone conclusion that the Oklahoma plaintiffs would not just win this outright, you know. And I think that you're right, it'll just be, next time they won't bring the case through this clinic that has connections with Amy Coney Barrett. They'll bring it through some other right-wing pro-Christian nationalist legal defense fund, and she won't have to recuse in that case, and I think there's a good chance — I mean, this is not over. You know, we have this one sort of quasi-victory today, but this issue will continue to live as long as there's a six-three right-wing majority on the Supreme Court.
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About United for Democracy
United for Democracy is a diverse and growing coalition of more than 100 grassroots organizations, labor unions, and advocates for reproductive rights, gun violence prevention, the environment, workers rights and more, all representing tens of millions of Americans. The new nationwide campaign launched to educate Americans about the impact today’s Supreme Court is having on their lives, freedoms, and democracy — and call on Congress to rein in its unchecked powers.