Virtue is sometimes its own punishment. We’ve witnessed an endless and frequently ridiculous parade of demands for the recusal of conservative Supreme Court justices, typically raised with complete disregard for the law’s actual recusal standards. Yet the most egregious non-recusal scandal of recent years involved Justice Ketanji Brown Jackson. After recusing herself from the Harvard race discrimination case, as she pledged the Senate she would do in her confirmation hearings, she was allowed by her fellow justices to sit in the companion University of North Carolina case raising nearly identical issues, which had been litigated as a joint defense with Harvard during appeals filed while Jackson was still on one of Harvard’s governing bodies. The Court effectively took the position that the national legal issue required a full Court, regardless of Jackson’s personal connections to the case, and thus took the unusual step of un-consolidating the two cases in order to allow Jackson to sit on one of them and write a dissent that effectively argued her position in both.

In Oklahoma Statewide Charter School Board v. Drummond, the Court faced another issue of national importance to education: whether the First Amendment’s religion clauses prohibit Oklahoma from funding student attendance at a Catholic charter school on the same terms as it would apply to a nonreligious charter school. The case reflected a division within Oklahoma, with the state’s charter school board and its former Republican attorney general in favor of the school, but the current Oklahoma attorney general, Gentner Drummond, and its state supreme court both against it.

Unlike Jackson in the university cases, Justice Amy Coney Barrett has no known ties to the school or any of the other parties to the case. But one of the litigants was represented by the religious-liberty clinic at Notre Dame Law School, where Barrett was a longtime faculty member (and still teaches); she is tied closely enough to the clinic that she felt compelled to sit this one out.

That came at a real cost. This morning, the Court affirmed the Oklahoma Supreme Court’s decision against the charter school “by an equally divided Court,” in an unsigned order without a written opinion. Affirmance by an equally divided Court, which happens when the Court is stuck on a 4–4 split, does not create a legal precedent, but it is nonetheless binding on the parties to the case, and it leaves standing the strident opinion of the Oklahoma court, which treated even independently operated, voluntarily enrolled, per-student-funded charter schools as governmental entities.

Because the Court’s even division was not explained, we don’t know which of the conservative justices sided with the three liberals. Chief Justice John Roberts seems the likeliest suspect, but that’s just speculation; Roberts wrote each of the last two majority opinions taking an expansive view of religious school choice, and all of the other conservatives have been consistently solid on the issue. What we do know is that Supreme Court recusals have real national costs, which is why they should be used so sparingly.