The Supreme Court Changes Its Mind About Clergy on Death Row
(Bloomberg Opinion) -- The Supreme Court has been taking a surely unexpected shellacking for its decision last week to stay the execution of a Buddhist inmate in Texas unless the state allows either his own spiritual adviser or a “Buddhist reverend of the state’s choosing” to accompany him to the death chamber. Had the inmate been a Christian or a Muslim, the short opinion notes, he would have had the company of an appropriate pastor. An obvious case of religious discrimination. So why the flak?
Because just this past February, in one of the most outrageous cases I have seen in my 30 years of writing about religious freedom, the justices denied a nearly identical petition from a Muslim inmate in Alabama, who was forced to leave this life without the accompaniment of an imam. The earlier decision was horrific, as I wrote at the time. “There can be, and is, a lot of debate about the right standards for judging a claim of religious freedom,” I noted. “But this should have been an easy decision.”
So like most religious freedom advocates, I was relieved by the court’s swift and sudden change of mind. It’s terrible that an inmate had to die in order to swing a couple of justices around, but at least now things are pointed in the right direction.
Except this is an era of suspicion of everyone’s motives, so people are reading an awful lot into the court’s collective mind. Was the switch because Domineque Ray, the petitioner in February’s case, was black, and Patrick Murphy, the petitioner in last week’s case, was white? Could the explanation lie in a hidden animus toward Islam?
Well, we certainly live in a time of enormous and at times fatal discrimination against black people; we live, too, in a time of enormous fear and animosity toward Islam. But when it comes to judging, I prefer to believe that superior reasoning makes the difference — meaning that the simplest explanation for the latest decision is that two justices realized they were wrong.
Back in my days teaching introductory constitutional law, I used to tell my students that the Supreme Court should overrule itself on one of two schedules: very, very quickly or very, very slowly. If the justices come to a swift realization that they’ve blundered, they should reach for a case that gives them the chance to correct their error. In this way, they keep a major mistake from becoming an oft-applied precedent.
Once a precedent is well established, however, the unwinding of its settled effects is trickier. Lots of rights and duties have been adjudicated. Lots of expectations have been settled. This isn’t to say that longstanding precedents can’t be overturned. Of course they can, and often should. My point is only that, in such a case, “We finally have five votes” is nearly always a terrible reason to change the interpretation of the Constitution.
The wrongheaded decision in Dunn v. Ray fits into the first category — decisions that should be revisited with haste — because it involves the conditions under which the state may take a human life. Even if we believe there are people who deserve to die, I hope we don’t believe that some of them, depending on what faith they follow, should be deprived of spiritual consolation at the end of their lives.
I’m glad the Supreme Court has had a change of heart; and I’m glad the change of heart has come quickly. Patrick Murphy has no control over when or how he dies. But now he will have a measure of control over who will be there to console him — the last decision he will make on this earth. Domineque Ray was deprived of the same autonomy. But at least the next Muslim inmate to face execution won’t be.
Understand the point. The issue is not whether there should be a death penalty. It is not how swiftly those sitting on death row should be executed. It is not the justice of a particular technology of execution.
The issue — the only issue — is whether the Constitution allows the state to provide religious support at the end to inmates of particular faiths and not others. That is a simple and straightforward matter of religious freedom, arising at the time when, for so many, God matters most. Thank God that the justices finally got it right.
Of the three justices who changed their votes, only Justice Brett Kavanagh wrote an opinion, and a brief one at that. People have been mining his short concurrence for an explanation of his switch, and there is indeed an unpersuasive footnote along the way, but the point of his opinion is clearly to remind us that the state has a broad range of options in finding a way to avoid the “denominational discrimination” present in the case.
That’s one reason that the reputation of the judiciary is harmed when politicians demand justices who will overturn Supreme Court decisions their base happens to hate. Think (most of) today’s left on corporate speech, (much of) today’s right on abortion; or, in an earlier era, a fairly solid right on school integration and classroom prayer.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
©2019 Bloomberg L.P.