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Barrett Flashes Independence as Top Court Backs Religious Rights

Feb. 12, 2021, 6:47 PM

Amy Coney Barrett is starting to show an independent streak.

The newest U.S. Supreme Court justice joined three liberal colleagues late Thursday in an opinion that said Alabama can’t execute a convicted murderer unless he can have his pastor by his side. That came less than a week after she took a somewhat nuanced stance on California’s Covid-19 restrictions on religious services.

Together, the votes offer early indications that the Donald Trump appointee may be harder to pigeonhole than some predicted during her rushed Senate confirmation process in October. Barrett succeeded the late Justice Ruth Bader Ginsburg, giving the court a 6-3 Republican-appointed majority.

Amy Coney Barrett
Photographer: Daniel Acker/Bloomberg

“She has a mind of her own,” said Josh Blackman, a constitutional law professor at the South Texas College of Law Houston. He called Barrett’s decision to join Justice Elena Kagan’s opinion in the Alabama case “significant.”

Barrett’s vote helped produce an unusual lineup to block the state from executing Willie B. Smith III as scheduled for the 1991 murder of Sharma Ruth Johnson. Three of the court’s conservatives -- Chief Justice John Roberts and Justices Brett Kavanaugh and Clarence Thomas -- said they would have let the execution go forward.

Two other justices, Samuel Alito and Neil Gorsuch, were silent, though the outcome of the case means at least one of them must have joined the majority.

Joining Kagan

But Barrett was the only conservative to join Kagan’s concurring opinion, which said death-row inmates have broad rights under a federal law that protects prisoners’ religious liberty.

“The law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death,” Kagan wrote. The court as a whole didn’t provide an explanation for the order, which left in force a federal appeals court decision that halted the execution.

Alabama officials cited security risks as grounds for barring outsiders from the chamber.

Elena Kagan
Photographer: Win McNamee/Getty Images/Bloomberg

The issue of spiritual advisers at executions has been a vexing one for the court. Kavanaugh has said states should be able bar clerics as long as some religions aren’t singled out for favorable treatment.

But with the majority taking a contrary view, Kavanaugh and Roberts said Thursday that states seeking to avoid litigation “should figure out a way to allow spiritual advisers into the execution room.”

Robert Dunham, executive director of the Death Penalty Information Center, said Barrett’s vote doesn’t mean she’ll be siding with death-row inmates regularly. The Thursday night order marked the first time Barrett had indicated she would block an execution from going forward.

“I don’t think we can read much into it,” Dunham said. “She appears to have come to that position not by breaking with conservatism, but by being true to an even more conservative notion of individual rights to practice religion.”

Church Singing

In the California case, Barrett aligned with Kavanaugh as she wrote her first separate opinion. They joined their conservative colleagues in ordering the state to let indoor worship services resume during the pandemic but voted to leave in force a ban on singing and chanting.

Barrett said a group of suing churches hadn’t shown that the singing ban discriminated against religion.

“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral,” Barrett wrote in a one-paragraph opinion. “But the record is uncertain, and the decisions below unfortunately shed little light on the issue.”

Brett Kavanaugh and Amy Coney Barrett
Photographer: Jonathan Ernst/AFP/Getty Images

Barrett’s faith has been in the public eye to an unusual degree for a judge, with liberals questioning her independence and conservatives pointing to her Catholic faith as a strength.

During her 2017 Senate confirmation hearing to be a federal appeals court judge, Democratic Senator Dianne Feinstein of California suggested the nominee’s religious “dogma” would guide her work as a judge. Feinstein’s comments drew criticism, and Democrats largely steered clear of the issue during Barrett’s Supreme Court hearing.

Her record overall since her October confirmation suggests Barrett will generally side with the conservative wing in ideologically divisive cases. In a 5-4 decision earlier this month siding with a railroad worker seeking disability benefits, Barrett was in dissent with Justices Thomas, Alito, and Gorsuch.

She joined the majority in November when the court voted 5-4 to block strict capacity limits on churches and synagogues in New York City. In that case Roberts joined the liberals in dissent.

To contact the reporters on this story:
Greg Stohr in Washington at;
Jordan Rubin in Arlington at

To contact the editors responsible for this story:
Jon Morgan at

Elizabeth Wasserman, Seth Stern

© 2021 Bloomberg L.P. All rights reserved. Used with permission.