Supreme Court

Brett Kavanaugh Explains Why He Voted to Grant Buddhist Inmate's Stay of Execution

The Supreme Court ruled 7-2 last night to grant Patrick Murphy's petition for a stay.

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POOL New/REUTERS/Newscom

The Supreme Court ruled 7–2 last night to grant a stay of execution to a man scheduled to be put to death in Texas.

Patrick Murphy, whose case I wrote about yesterday, was convicted under Texas' law of parties in the 2000 murder of a police officer. While he didn't pull the trigger, Murphy was involved in the robbery that led to his compatriots committing murder.

"I'm not challenging the guilt of the crime," he told CBS Dallas-Fort Worth this week. "My role was basically really to be the getaway driver."

Despite not having been directly involved in the murder, various courts have refused to grant him a stay of execution. But Murphy also alleged that his First Amendment right to freedom of religion was being violated. He converted to Buddhism while incarcerated, but the State of Texas would not allow his spiritual adviser to be by his side in the execution chamber, since the Rev. Hui-Yong Shih is not an employee of the Texas Department of Criminal Justice.

A federal district and circuit court would not grant Murphy a stay, meaning only the U.S. Supreme Court (or executive clemency) could spare his life. The Court came through on Thursday night, ruling:

The State may not carry out Murphy's execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy's Buddhist spiritual advisor or another Buddhist reverend of the State's choosing to accompany Murphy in the execution chamber during the execution.

Clarence Thomas and Neil Gorsuch were the only justices who would have denied a stay. While the Court as a whole did not explain its reasoning, Justice Brett Kavanaugh did publish a concurring opinion detailing his own decision.

"In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room," Kavanaugh wrote. "But inmates of other religious denominations—for example, Buddhist inmates such as Murphy—who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions."

"In my view, the Constitution prohibits such denominational discrimination," he said.

There were two possible solutions, he added. The state could let religious advisers of all faiths in the execution chamber, or confine them to the viewing room. The key is equal treatment. The state cannot give preferential treatment to Christian or Muslim inmates over Buddhist prisoners, Kavanaugh said.

The Court's ruling surprised some observers, because it seemed to rule the opposite way in a similar case in Alabama last month. Dominique Ray, a Muslim inmate, wanted his imam to be by his side before he died. The state would not oblige for security reasons, since it does not employ any Muslim imams. But in that case the Court's decision didn't rest on the constitutional question: The justices ruled 5–4 that Ray had waited too long to file a petition for relief.

That did not seem to be an issue in this case, at least for Kavanaugh. The justice wrote in a note at the bottom of his concurring opinion that "Murphy made his request to the State in a sufficiently timely manner, one month before the scheduled execution."

According to UCLA law professor Eugene Volokh (of Volokh Conspiracy fame), the Court's most recent ruling may also reflect a backlash "from scholars whose views the justices respect" following their decision in the Ray case. "And of course justices should be open to changing their minds when they are persuaded that they were likely mistaken," he tells NPR.

Regardless of their reasoning, the ruling is most certainly a positive. As Ilya Somin notes today at The Volokh Conspiracy:

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.

Murphy will now go back to death row.

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  1. The justices ruled 5?4 that Ray had waited too long to file a petition for relief.

    Tapping the sign behind the bench at the Supreme Court: “Lack of preparation on your part does not constitute an emergency on ours.”

    1. Which is hilarious, because in that case he and his lawyer didn’t know and couldn’t have reasonable expected that his imam wouldn’t be allowed until the last minute, and filed within days of finding out. In this case, the policy wasn’t secret (like it was in Alabama) and the lawyer should have known long before, and they waited weeks after being denied to file.

      If that’s really what the SCOTUS is going on, they’re saying you can be denied a spiritual advisor as long as the state waits till the last minute to tell you about the denial. They only have to allow it if they tell you early. Is that really the precedent we want to set?

      1. Yes the could have with a quick call to the jail. both the priest and imams have gone through preclearance and background checks. This guy was requesting a Buddhist leader to be in the room. He had not gone through checks.

        Did you even bother to read the article? The jail has a cleared imam that attends.

        1. Did you?

          Ray, the guy who was denied by the SCOTUS, was the Alabama Muslim who has already been executed.

          Murphy, the guy who just got a stay from the SCOTUS, is the Texas Buddhist who has not yet been executed.

          Ray, the dead guy, was told about his denial at the last second and appealed within days.

          Murphy, the still living guy, could have reasonable expected the denial, was told with plenty of time to spare, and waited weeks to file his appeal.

          1. The jail has a cleared imam dummy. Restricted areas have extra security. This isnt a debate dummy.

            1. Which jail are you talking about? The one housing the Buddhist (who doesn’t care about an imam) that had an imam on staff, or the one housing the Muslim that didn’t have an imam available?

              The issue here isn’t about security, its about whether the state select one or a few religions and employ clerics, and tell practitioners of other religions to stuff it. (the First Amendment would say No)

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  2. What a feel good story.

    1. I shouldn’t laugh

      1. now i can’t stop.

  3. And of course justices should be open to changing their minds when they are persuaded that they were likely mistaken…

    Ray can take comfort in that, I’m sure.

  4. Maybe Kavanaugh was actually a Buddhist in a former life and he’s got this innate sympathy for Buddhism that he can’t understand…?…

  5. Being a Buddhist is completely irrelevant to anything.

    1. Wait, I read it wrong the first time. Is the only reason for the stay his not having his spiritual adviser? So as soon as Texas lets his spiritual adviser to be there they can execute him?

      1. Or bans them all from the execution chamber. Keep in mind that is Kavanaughs opinion, the other Justices who voted for a stay may require more.

        1. Is it normal for them to just not comment at all about their reasoning on these matters?

          1. Normally, they have one justice (sometimes two) author the opinion and every justice that signs off on the opinion agrees with the reasoning. If other justices reach the same outcome by different logic, they write a concurring opinion.

            1. For a full-blown opinion, that is correct. For an announcement of a stay or other more administrative decision, it is common to issue the decision with no reasoning behind it. Kavanaugh’s decision to write out his reasoning is what was unusual at this stage.

        2. This story isnt about religions having extra access over others. Read the case materials. No Buddhist had gone through the clearances required to be in the room. Priests and imams have.

          1. We don’t let the facts get in the way of a good Narrative in America anymore.

      2. Pretty much:

        “The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”

        Texas also gets to select a different Buddhist cleric if it doesn’t like the one Murphy has.

        I’m surprised Murphy is still alive – I would presume that the prison staff are working overtime to either get Murphy’s guy certified for execution-chamber duty or looking around for another Buddhist priest to serve that function.

        1. Maybe they can check out Austin – apparently plenty of Buddhists there, though they may not want to implicate themselves in the death penalty, this being Austin and all.

          https://atxne.ws/2I0hWrS

          1. That would certainly be an interesting denial. A holy man who is unwilling to aid a dying man is of questionable character.

            1. It’s just speculation, all I know about Austin Buddhists is from that article.

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  7. Lesson: If you want to avoid state execution, don’t miss court filing deadlines.

    1. If you don’t want to be denied a spiritual adviser like a thug, don’t be in a state where they wait until past the filing deadlines to tell you that you’ve been denied a spiritual adviser like a thug.

      1. Or, you know, don’t do murder…

        Though Ray did kinda get shafted.
        At the same time, his lawyer probably could’ve confirmed the availability of his client’s company a bit earlier.
        I don’t like that decision, but I’m undecided on its merits at this point.
        Murphy probably shouldn’t be getting executed, though that’s not clear cut either

  8. There but for the grace of my crazy friends, go I.

  9. Brains in a vat pondering nonsense. The John Roberts ideal.

    1. What is the frequency, Kenneth?

      1. It’s usually possible to figure out what Tony is saying – not the same as agreeing with it – but here it’s difficult to interpret beyond “Republicans bad.”

        1. That is all ye know on earth, and all ye need to know.

          1. TONY HAS SPOKEN.

  10. Why are you dickheads using a terrible picture like that for a guy who has done absolutely nothing wrong?

    Oh right, I almost forgot. It’s because you’re a bunch of fake libertarian Obamatards who want more Ruth Buder Ginsburgs and Sonia Sotomayors on the court to speed along the “fundamental transformation of America”.

    1. He always looks like that because he starts drinking at 7 a.m.

      1. I can hardly wait to see what insanity you guys come up with for Ginsburg’s replacement.

        1. Who says those guys get to decide?

    2. Lol. Never change, Mikey.

      1. Go suck Block Yomomma’s cock, faggot.

        1. The day of your replacement will be an especially nice day for your betters, clinger. I might put up a nice bottle in anticipation.

          1. Put a nice bottle up where?! No, don’t tell me; I don’t want to know!

    3. Exactly, real libertarians make sure to put their dear leaders in the best light. A pox on Reason for throwing shade at our elite betters.

    4. The Blubberin Justice! You triggered by that?

  11. so let the dude in the room der (I am not for the state carrying out a death penalty)

    1. It’s a secured area of the jail since they have physical access to the prisoner. Buddhist cleric should have gotten himself cleared to attend. He didnt. Other religious advisors have.

      1. Your interpretation seems even less trustworthy than a Bill Barr special.

        1. Fake Kirkland post. No mention of “Clingers”.

  12. Kavanaugh is the designated getaway driver for the SC. If you’re on death row you can really foul things up by converting to Aztec Orthodox. Good luck finding a priest for you. Worse luck if they do.

    1. Come on, have a heart.

  13. Good News Anti Death penalty fans. A member of the Satanic Ripper Crew that kidnapped, raped, mutilated and murdered as many as 20 women in the Chicago area in the early 1980s was released from an Illinois prison on Friday. And ladies he’s only 58 and single. Woo Hoo!

    1. Did he do all 20 or split the job among himself and other Satanic Ripper Crew members?

    2. “Guidelines in Illinois at the time of his sentencing rewarded inmates, even violent felons, for good behavior and that led to his prison time being cut in half.”

      You didn’t kill, rape or mutilate any women while in prison. Great job!

      1. If anyone wonders about how “overincarceration” came about, it was in reaction to “guidelines” like those.

  14. “Despite not having been directly involved in the murder…”

    Other than the part about being there, being an active participant in a crime the cop was seeking to stop, and giving verbal warning to his armed accomplices of said cop’s approach. Other than that he was not ‘directly’ involved.

    Joe Setyon, again proving that he is impervious to logic and reason.

    1. Right on, ThomasD. Do these people just not get it?

    2. Sounds indirect to me. It’s still involvement, and probably sufficient to justify the charge. But still indirect when it comes to the actual act of murder.

  15. You gotta’ love Thomas and Gorsuch. “Fry the SOB, now!” This is the kind of nonsense many of us are sick and tired of. The guy drove a car during a bank heist during which a killing occurred. He’s guilty! Fry his ass now.

    1. So much for them being widely acknowledged/accepted as the two ‘most libertarian’ justices. Nothing is as libertarian as the smell of dead bodies in the morning

      1. Again, none of the Justices says don’t kill the guy, they say don’t discriminate against Buddhism when you do it.

    2. I think it’s lethal injection, and Texas is free to do it to the guy so long as they allow a Buddhist cleric in the death chamber, just like they do with Christian priests and ministers and Muslim imams (not apparently rabbis – does Texas have any Jews on Death Row?)

      1. So a rabbi walks into the execution chamber.

        The condemned man says, “get out of here, rabbi, I’m not Jewish any more, I found Jesus.”

        The rabbi, shocked, says “why did become a Christian so suddenly?”

        The condemned man replies, “better for one of them to die than one of us.”

  16. And they all lived happily ever after…

  17. One more reason to like Supreme Court Justice Clarence Thomas.

  18. Solution is no spiritual advisers of any type in execution chamber. You can’t have non-prison employees in their, who very well could decide to mess with the execution as a stunt. And no prison should have to have an employee for every imaginable “faith”. So only those performing the execution should be in chamber. Every spiritual adviser shoudl stop at the door.

    1. It seems very grudging and ill-natured to go along for years letting mainstream believers have ministers of their faith in the execution chamber, but as soon as non-mainstream faiths start seeking admission, closing the door to all faiths.

      Texas – Texas! – seems to have managed with Muslim clerics in the execution chamber. Would Buddhist or Wiccan clerics be any more disruptive than Muslim ones?

      1. >It seems very grudging and ill-natured to go along for years letting mainstream believers have ministers of their faith in the execution chamber, but as soon as non-mainstream faiths start seeking admission, closing the door to all faiths.

        You have to draw the line somewhere. “I can’t be executed because you can’t employ a minister for my ridiculously specific religion that I converted to in prison for the express purpose of you not having a minister so I can’t be executed.” seems like a terrible thing to allow.

        1. In a scenario where the religion is so small that there aren’t any local ministers, then the state is not to blame and I’d say let the execution go forward.

          In Murphy’s case, there’s a minister available – not surprisingly because Buddhism does have adherents, and anyway the Supreme Court’s order allows the use of another Buddhist minister if the state doesn’t trust Murphy’s minister.

  19. “Murphy will now go back to death row…” and TX will execute him in a timely manner.

  20. The next trick will be granting stays of execution when the State fails to *supply* spiritual advisors of the desired type.
    The “advisors” will get together and refuse to attend, perhaps after burning time getting vetted for it.

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  22. Kavanaugh’s real reason for voting. He thought Buddhist meant the guy liked Budweiser.

    1. In before that joke reappears with a College Humor watermark.

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  24. I do not agree with government having legal power to execute.

    In principle some people have done things so horrible they should be killed.

    Yet I do not trust government and our legal system with this power.

    1. Now that’s a point worth considering – compare the theory of the death penalty (which sounds great) with its actual administration (which is often quite grievously flawed).

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