Late on Thursday night, the Supreme Court blocked Willie Smith’s execution in a surprising and somewhat puzzling decision that divided the court along unusual lines: Justice Amy Coney Barrett joined the court’s three liberals to hold that Alabama must let Smith, a devout Christian, bring his pastor into the execution chamber when he is killed. The decision suggests that Barrett may apply principles of religious liberty more consistently than some of her conservative colleagues, even when doing so leads to a result favored by progressives and opposed by conservatives. There is, however, a mystery at the heart of the court’s order: Because it is a “shadow docket” decision, we do not actually know who cast the fifth vote to halt Smith’s execution.
Dunn v. Smith is the latest in a line of cases that ask whether the government may forbid death row inmates from bringing a religious counselor into the execution chamber. In 2019’s notorious Dunn v. Ray, the court allowed Alabama to exclude a Muslim inmate’s imam from the chamber by a 5–4 vote. All four liberals dissented. They accused Alabama of religious discrimination in violation of the First Amendment because it let prisoners bring a Christian chaplain to accompany their final moments, but not an imam. Less than two months later, the court seemed to reverse course: By a 6–3 vote, it prohibited Texas from executing a Buddhist inmate without the presence of his spiritual advisor. This time, Justice Brett Kavanaugh, joined by Chief Justice John Roberts, noted that Texas allowed Christian chaplains to accompany prisoners in their final moments; if the state lets religious figures of one faith into the death chamber, Kavanaugh concluded, it must let those of other faiths into the chamber, as well.
In response to these decisions, Alabama simply barred all religious counselors from accompanying inmates as they are put to death. Willie Smith, yet another inmate on Alabama’s death row, attacked this new rule under a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The statute bars prisons from placing a “substantial burden” on an inmate’s “religious exercise” unless that burden satisfies strict scrutiny. To meet that standard, the prison’s restriction on religion must constitute “the least restrictive means” of furthering a “compelling governmental interest”—an “exceptionally demanding” standard. Smith’s claim under RLUIPA is thus broader than previous prisoners’ claims under the First Amendment. He is not required to prove that Alabama has favored other religions over his, only that the state’s total ban on religious figures in the death chamber is not the “least restrictive means” of maintaining prison security.
Justice Elena Kagan—joined by Justices Sonia Sotomayor, Stephen Breyer, and Barrett—endorsed Smith’s argument on Thursday night. Security, Kagan wrote, is surely a compelling governmental interest. But “past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber.” Alabama argued that it cannot trust clergy members who are not affiliated with the state or the prison to enter the chamber—but that, Kagan wrote, is untrue. She pointed out that many states, as well as the federal government, “have allowed clergy members with no connection to the government to attend an inmate’s execution” without disruption.
Either Alito or Gorsuch (or both) must have voted with Barrett and the liberal justices.
“Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution,” Kagan explained. “Alabama can take any number of measures to ensure that a clergy member will act responsibly during an execution,” including a background check, an interview, and “a penalty-backed pledge” that he’ll follow the rules. “What the State cannot do,” she concluded, “consistent with strict scrutiny, is simply presume that every clergy member will be untrustworthy—or otherwise said, that only the harshest restriction can work.”
Kavanaugh, joined by Roberts, dissented. “Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room,” he wrote, he would’ve allowed the execution to move forward. Justice Clarence Thomas also noted his dissent. That leaves us with one big, unanswered question: Who cast the fifth vote to block Smith’s execution? By process of elimination, we know it was either Samuel Alito or Neil Gorsuch. But in 2019, in an opinion joined by Gorsuch, Alito expressed skepticism toward the argument that RLUIPA requires prisons to let inmates bring spiritual advisors into the death chamber. Alito gave credence to the state’s claim that it could not trust an outside spiritual advisor to behave appropriately during the execution. And he speculated that “allowing members of the clergy and spiritual advisers other than official chaplains to enter the execution room” could “set an unworkable precedent.”
Obviously, either Alito or Gorsuch (or both) changed his mind between then and now, because someone cast the decisive vote with Kagan, Sotomayor, Breyer, and Barrett to stop Alabama from killing Willie Smith. But in a “shadow docket” decision like this one, issued without full briefing or arguments, the justices are not required to note their votes. Thus, the Supreme Court has altered the law of religious freedom and the death penalty without providing a majority opinion for the lower courts to follow—and without telling the public which justice provided the crucial vote to safeguard Smith’s rights. (Smith will still be killed, albeit with the presence of a pastor who, in Smith’s words, will “relieve his struggle as he passes” and help him “properly express to God his repentance.”)
Aside from this puzzle, the most notable aspect of the court’s decision in Dunn v. Smith is probably Barrett’s alliance with the remaining liberal justices. There is no doubt that Barrett is very conservative, but her few votes so far do signal that she may distinguish herself from the court’s more nihilistic and partisan far-right justices. We know the justice believes deeply in religious freedom. But all the justices purport to hold this view, and not all of them apply it consistently—especially when it clashes with other conservative priorities like facilitating speedy executions. Barrett, it bears noting, has voted to let other executions move forward over the liberals’ dissents. But she drew the line at Alabama’s extreme policy. With this court, progressives must take any victory they can get. And Dunn v. Smith is a small but meaningful triumph for a principled application of genuine religious liberty.
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