SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote)

With Justice Barrett joining Justice Kagan, does Dunn v. Smith represent a shift on the Court?

On Thursday, while most were focused on the impeachment drama on Capitol Hill, the Supreme Court denied Alabama's request to vacate an injunction barring the execution of Willie Smith. While some justices noted their position in Dunn v. Smith, we do not know who formed the majority rejecting the request.

At issue was Smith's request to have his pastor present at the execution. Alabama bars all clergy from the execution chamber, and Smith claimed this violated his religious liberty rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Justice Kagan issued a brief opinion concurring in the denial, joined by Justices Breyer, Sotomayor, and (perhaps surprisingly) Barrett. "Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security," Kagan wrote on behalf of four justices. This leaves a mystery: Who was the fifth justice who refused to vote in favor of vacating the stay barring Smith's execution?

Justice Kavanaugh wrote a brief dissent, joined by the Chief Justice, concluding Alabama's policy was permissible because it was non-discriminatory and, in his view, "serves the State's compelling interests in ensuring the safety, security, and solemnity of the execution room." The Court also noted Justice Thomas would have granted the application.

Four justices were on record rejecting Alabama's application. Three justices indicated they would have granted it. This leaves two justices unaccounted for, raising the question which of the two provided (if not both) voted against granting Alabama's application.

Neither Justice Gorsuch nor Justice Alito is known for being particularly solicitous of claims filed by capital defendants. On the other hand, both have been quite supportive religious liberty claims. The conventional wisdom may be that Justice Gorsuch is more likely to be a "cross-over" vote than Justice Alito, but the latter authored an important RLUIPA decision (Holt v. Hobbs) and has been particularly outspoken on the importance of religious liberty of late.

If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court's injunction in place. Either way, the Court's line-up in Dunn–Barrett and either Gorsuch or Alito (if not both) joining the liberals with Thomas, Kavanaugh and the Chief Justice in dissent–is quite unusual. Is it a sign of things to come? We'll have to see.