Not much as we have seen in recent years. But now the ultra-conservative Court has a religious liberty challenge that has the Justices all twisted. From SCOTUSblog:
The Supreme Court on Tuesday appeared divided over a Texas inmate’s plea to have his pastor touch him and pray out loud while he is being executed. The justices have wrestled with the question of spiritual advisers at executions for two and a half years, but Tuesday’s oral argument in Ramirez v. Collier was the first time that they heard argument on the right of inmates to receive religious comfort and guidance in their final moments. The justices weighed the inmates’ religious rights against the state’s concerns about security and its desire to have the execution proceed smoothly, as well as their own worries about the prospect of endless last-minute litigation by inmates facing execution.
Arguing on behalf of inmate John Ramirez, lawyer Seth Kretzer told the justices that, before changing its policy in 2019, Texas had carried out hundreds of executions in which spiritual advisers were allowed to touch the condemned inmate and pray out loud.
Chief Justice John Roberts pressed Kretzer on the limits of his rule. Is it enough, Roberts asked, that Ramirez’ pastor, Dana Moore, touch him anywhere on his body, or does he have to touch him somewhere specific? When Kretzer responded that anywhere on the inmate’s body would be fine, Roberts inquired whether his answer would be different if an inmate’s religion required the spiritual adviser to touch the inmate on the forehead, for example, or the heart? Kretzer indicated that it would be a closer case, but that both of those body parts were still not located near the place where an IV would be inserted.
Justice Brett Kavanaugh suggested that any form of touching could pose a problem because the lethal injection process is delicate and complex. Kavanaugh pushed back against Kretzer’s contention that Texas had repeatedly carried out executions with spiritual advisers touching inmates, telling him that such examples “don’t move me at all” because those chaplains had been state employees. Kavanaugh was more worried, he said, about “someone from the outside,” like Moore, “coming in.” Kavanaugh returned over and over again to the idea that the state was trying to reduce the risk of having something go wrong in the execution. Allowing a spiritual adviser to touch the inmate during the execution, Kavanaugh contended, will increase that risk.
Kavanaugh voiced a related concern when Kretzer told Roberts that courts should analyze a state’s failure to provide the religious accommodations that an inmate requests on a case-by-case basis. A ruling in favor of Ramirez, Kavanaugh complained, would mean that similar claims would be “a heavy part of our docket for years to come.”
Justice Samuel Alito echoed Kavanaugh’s alarm at the prospect of “an unending stream of” litigation, coming to the Supreme Court at the last minute to delay executions.
Justice Clarence Thomas suggested that Ramirez might have been “gaming the system” because he had “changed his request a number of times.” If that is the case, Thomas asked Kretzer, how should courts determine whether his religious beliefs are sincere?
Kretzer pushed back against the premise of Thomas’ question, telling the justices that Ramirez has “always asked as quickly as possible” for relief and that his religious beliefs are both sincere and “consistently stated.”
Justice Amy Coney Barrett, who in February 2021 provided a key vote to block the execution of an Alabama inmate who wanted to have his spiritual adviser in the execution chamber with him, was more sympathetic to Ramirez. Responding to Kavanaugh’s characterization of the state’s interest in barring touch and prayer by spiritual advisers as one that reduces the risk of something going wrong, she pushed Kretzer to disagree – and in so doing, appeared to signal her own disagreement. The real compelling interest, she suggested, is prison security or “carrying out the execution in a humane and safe way.”
