You may remember the last, failed appeal by Dominique Ray to have a representative of his faith tradition (Muslim) be present at his execution, and that SCOTUS voted 5-4 along strict party lines in that decision. But now another such appeal has come along, this time involving a Buddhist – and SCOTUS voted 7-2 to uphold the appeal. So what the hell is going on? Ilya Somin of The Volokh Conspiracy explains the situation and has a guess as to the reason for the decision:
… the Supreme Court stayed an execution in a Texas case in which the defendant, a Buddhist, was denied the right to have a Buddhist priest join him in the execution chamber, even though Christian and Muslim prisoners were allowed the company of spiritual advisers of the same faith, in like circumstances. The facts of Murphy v. Collier are very similar to those of Dunn v. Ray, a recent ruling in which the Court allowed an Alabama execution to go forward, even though the prisoner, a Muslim, was not allowed to have a Muslim imam in the execution chamber with him, while Christian prisoners were allowed to have a Christian minister present. …
Why then, did Alito, Kavanaugh, and Roberts rule in favor of Murphy despite previously ruling against Ray? We cannot know for sure. But it is possible to make some educated guesses. …
A more likely reason, in my view, is that the justices saw the extremely negative reaction against their decision in Ray, and belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the Court’s reputations. Presented with a chance to “correct” their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.
And, whatever can be said about the procedural question, it’s a good thing that the justices have taken a major step towards clearing up any confusion over their stance on the substantive one. Whether in death penalty cases or elsewhere, it is indeed impermissible for the government to discriminate on the basis of religion.
I’m a little conflicted. It’s dismaying to see the Court swayed by public opinion (or pundit prattle, if you prefer), since Courts are ideally in the business of interpreting the law & Constitution regardless of the whim of public opinion. They provide a stable pillar to how government works.
On the other hand, given the reaction from across the political spectrum to what appeared to be religious bigotry on the part of the conservative wing of the Court in Ray, it’s a little reassuring that at least Alito, Kavanaugh, and Roberts were willing to admit a prior mistake and have backfilled where they can, assuming that Somin is correct in his guess.
But then how do we evaluate the Gorsuch and Thomas votes? They may have reasoned that making this a 9-0 vote for the appellant in Murphy would have suggested they had made a mistake in Ray; or it might have suggested inconstancy in their judgments between the two cases. Neither looks good for their legacy. On the other hand, their vote in Ray is an equally outsized blemish on their legacies. It’d be interesting to know if any of these guesses truly are accurate, or if they’d put forth yet another reason for their stubborn position.
And for the long term? I’m not sure. That Chief Justice Roberts screwed up the Ray case is appalling and disappointing. Somin has already pointed out in text I did not quote that, if anything, the reasoning applied by the majority in Ray applied with even more impact in Murphy; yet three conservative justices did not accept that reasoning.
These two cases, although as I understand it not precedent-setting, may generate painful and logically twisted legal arguments for years to come.
