An Inconsistent SCOTUS Rules Against Religious Discrimination on Death Row


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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23 Responses

  1. Avatar LeeEsq says:

    I think the conservatives on SCOTUS were essential shamed by the Justice Kagan if I may engage in a bit of Kremlinology. They realized that they made a very dumb decision previously and changed course. It happens.Report

    • Avatar pillsy says:

      This seems eminently plausible, but a lot of people are going to look at the two photographs, and hear about the respective non-Christian faiths of the two condemned men, and reach other conclusions.

      And the Roberts Court has done little to make me think they’d be unjustified in doing so.Report

      • Avatar Doctor Jay says:

        You don’t have to look at things they haven’t done, you can look at things they have done, and the consequences of those decisions.

        This is the Court that rolled back VRA protections on states such as North Carolina, which immediately went on a bender of discriminatory gerrymandering.

        We’re supposed to trust this Court’s judgement about racial matters? We’re supposed to think that they understand and integrate thinking about how racial bias works in our culture into their judgements?

        I like giving people benefit of doubt. But their positive actions have removed a lot of doubt. I’m not charging bad faith, I’m saying they are in denial and stonewalling any sense of how racial bias works in our country.Report

    • Avatar Burt Likko says:

      This is a good take and I tentatively endorse it. We may never really know the whole truth, but I recall when Ray’s case was decided that it brought immediate cries of outrage — in some cases, from good Christians and not just us commielibs.

      I’m an atheist. In my opinion, denying a condemned prisoner access to clergy of their faith renders an execution inherently cruel and unusual punishment. If, unlike me, you actually do believe in the existence of a soul and the validity of religious exercises to redeem that soul from the ravages of sin and prepare it for the afterlife, that goes double.Report

      • Avatar Em Carpenter says:

        I agree with you Burt. I would point out that these men were permitted to meet with their spiritual advisors in the hours leading up to their deaths, right up to the chamber door (not to downplay the comfort provided by having the person at their side when the real moment comes.)Report

        • Avatar Philip H says:

          There’s also the issue that most religious practitioners feel a duty to witness this sort of event as a means of spreading peace from their work. Thus they would prefer to be beside the condemned then behind plate glass.Report

  2. Avatar Silver Wolf says:

    Taking a lesson on rules corrections from the NFL. “We botched it, but we promise to overreact the next time.”

    I’m sure skin color had nothing to do with it.Report

  3. Avatar Pinky says:

    Seriously, someone’s got to break into a smile so I’ll know you’re kidding about this being a racial thing. If you don’t, I’m going to have to believe you.Report

    • Avatar pillsy says:

      I don’t think it’s a racial thing.

      I think it’s a “bad previous decision made for non-racial reasons coupled with deserved distrust on racial matters” thing.Report

      • Avatar Silver Wolf says:

        At this point, I am completely unwilling to give any of these privileged yahoos the benefit of the doubt on race, sex, or any other bias. Based on a list of previous behaviors thick enough to choke a horse, they would have to demonstrate clearly that their decisions did not have a racial component to it or I will assume the worst.Report

    • Avatar Mike Schilling says:

      It is a complete coincidence that a white guy got more justice than a black guy did. It always is.

      There was also no way to predict that Gorsuch would be the same kind of “never saw an authority whose ass he wouldn’t kiss” toady as Alito.Report

  4. Avatar Doctor Jay says:

    I would agree that this second ruling is a much better one. I can live with that. I never thought I would say this about SCOTUS, but really. What a bunch of dumbasses.

    Kavanaugh’s footnote seems evidence for my impression of him as a political servant. That guy is never going to be a leader, no matter what office he gets himself appointed to. He’s going to suck up to the most powerful person in the room, no matter what.Report

  5. Avatar George Turner says:

    The court is no doubt cognizant that such last minute notifications by the condemned are often used as a delaying tactic, and this one can become a game of “stump the warden”. I’d request some obscure tribal shaman from a rain forest in Brazil and see if the state would mount an expedition into the heart of darkness to find him, or an obscure schismatic lama from Chinese-occupied Tibet that they’re never going to allow onto a plane. If those requests fail, a Satan worshiper or Charles Manson cultist should do a great job of turning the whole thing into a horrifying disaster for everyone involved.

    Accommodating all reasonable and timely requests, but only reasonable and timely requests, or not indulging condemned convicts at all, seem like a safe position for the court to take.


    • Avatar North says:

      So do ya think Ray’s request that Alabama allow him access to an Islamic Immam was an exotic last minute nuisance? I mean, sure, it is Alabama but Fox news tells me Muslims are trying to establish Sharia there all the time so surely they wouldn’t be hard to find? Send a well armored Alabama State trooper into one of those no-go zones maybe?Report

      • Avatar George Turner says:

        Alabama would have had a week to find an imam who is employed by the state prison system and trained in the procedures, because those were requirements under Alabama state law, and that applied to Christians, Jews, Muslims, and Buddhists. Christians don’t get to have the pastor of their choice. They have to make do with a prison’s pastor. Here, there wasn’t a properly employed and trained imam available.

        Now if the request comes in early, training and imam and putting him on the payroll as some sort of adjunct isn’t much of a burden.

        The justices probably think about such things from time to time.Report

        • Avatar Em Carpenter says:

          In the Alabama case, they withheld the execution protocols and policies from the inmate. When he asked for his cleric is when he was told he couldn’t have him, so he couldn’t raise the issue until then.
          Also worth noting there was an imam already serving the prison’s Muslim population, so they would not have had to go out and find one.Report

          • Avatar Mike Schilling says:

            This is a common kind of legal BS, isn’t it? E.g. in civil asset forfeiture cases, there’s often an undisclosed deadline for appealing the confiscation, which conveniently expires before an appeal can be made.Report

        • Avatar Philip H says:

          Makes you wonder what access Mr. Ray had to an imam before his execution. because if there was regular access to one for normal religious practice and education, that should have made the additional training a low bar to overcome.Report

    • Avatar Em Carpenter says:

      OK… But the whole point of my post is that the “timeliness” requirement is an arbitrary moving target and inconsistently applied…Report

  6. Avatar Slade the Leveller says:

    So, it appears that in the Roberts balls and strikes court make up calls are allowed.Report

  7. The pictures alone go an awfully long way toward explaining the different conclusions.Report

  8. Avatar Mike Schilling says:

    And we see from today’s ruling that timeliness trumps torture.Report