What happened? Your guess is as good as mine. The Supreme Court isn't explaining how it got to a 4-4 tie in OK Charter School Board v Drummond, except to remind everyone that Justice Amy Coney Barrett recused herself.

The Supreme Court only offers an explanation of the effect of the 4-4 tie in its terse per curiam order:

The judgment is affirmed by an equally divided Court.

Well, that certainly explains everything. Thanks bunches, everyone.

The implication gets explained by ABC News:

The Supreme Court issued a one-line opinion upholding the Oklahoma Supreme Court's ruling that taxpayer-funded religious schools would violate both the state and U.S. constitutions.

"The judgment is affirmed by an equally divided Court," the Supreme Court wrote in an unsigned ruling so it is not known how each justice voted on the issue.

The court action leaves in place lower court rulings that said the arrangement would have violated the establishment clause of the First Amendment.

The per curiam order allows the justices to dodge accountability in this decision. Which justices voted which way? Even the New York Times seems a bit surprised, after listening to the oral arguments last month:

The brief ruling in one of the most anticipated cases of the term came as a surprise, after the oral arguments in April. A majority of the justices had appeared open to allowing Oklahoma to use government money to run the nation’s first religious charter school.

As they should. Duane covered the oral arguments and the parameters of the case last month, but they are worth covering again. Unlike some states, where charter schools are fully part of the public-school systems, Oklahoma allows private schools to operate within their charter-school systems. The archdiocese put together a plan for a Catholic charter school and submitted it for approval, along with other private school operators, and were denied consideration on the basis of religion. The archdiocese then filed suit against the Republican Attorney General in Oklahoma, who has taken a lot -- a lot -- of heat for his opposition to the application. Drummond explained that future schools might teach Islam, and so he had to draw the line at Catholicism. 

No, really. 

The issue in this instance isn't a state establishment of religion via a public school. It seems doubtful in the extreme that anyone would expect a religious school to qualify as a charter school in an exclusively public system. However, Oklahoma opened that system up to private operators, which means that all such operators should be allowed to qualify without discrimination on the basis of faith. It is the same principle that animated such Supreme Court precedents as Hosanna Tabor (9-0) and Espinoza v Montana Department of Revenue (6-3), just to name a few. 

The ADF participated in this case and are left scratching their heads about the outcome:

“Oklahoma parents and children are better off with more educational choices, not fewer. While the Supreme Court’s order is disappointing for educational freedom, the 4-4 decision does not set precedent, allowing the court to revisit this issue in the future. The U.S. Supreme Court has been clear that when the government creates programs and invites groups to participate, it can’t single out religious groups for exclusion, and we will continue our work to protect this vital freedom for parents and students. We remain proud of our clients, the Oklahoma Statewide Charter School Board, and their brave stand for educational freedom.”

Why did the court deviate from their previous precedents? Unfortunately, we will never know, because the justices decided not to explain themselves. We don't get an argument for either side, not even dissents that might have allowed us to understand the contours of the reasoning by justices who favored the lower court rulings. And most importantly, we don't get to know which justices voted in which direction, and why what had looked like a solid oral argument to overturn those earlier rulings didn't convince four justices to follow their own precedents.

That's not against the rules, of course. But it's not exactly Profiles in Courage either.

Addendum I: I don't want to needlessly speculate about which of the six 'conservative' justices flipped in this case. We know it wasn't Barrett. But far be it from me to tell our VIP members to refrain from speculating in the comments.

Addendum II: The court's other decision today is of interest, and this one got a clear 6-3 ruling. In Kousis v US, the court reviewed a Pennsylvania case in which a business lied about using a "disadvantaged business" in order to secure a government contract, using said "disadvantaged business" as a mere pass-through for their supplies. The defendant argued that the government got the work done at the agreed price and that there was no fraud. The ruling, written by Barrett, scoffs at that explanation, and the only real surprise is that this isn't a 9-0 ruling. 

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