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Barrett Joins Liberal Justices to Stall Execution Without Pastor

Feb. 12, 2021, 12:03 PM

Justice Amy Coney Barrett joined the Supreme Court’s Democratic appointees to block Alabama from executing an inmate without his pastor in the chamber.

The divided Supreme Court action late Thursday was notable not only for siding with a death-row inmate, but also for Trump-appointee Barrett’s vote in a novel lineup.

The religious adviser issue has been a rare winner for death-row inmates in recent years, though not uniformly.

The court’s latest action blocked the state from executing Willie B. Smith III as scheduled on Thursday for the 1991 murder of Sharma Ruth Johnson. The state will need to reschedule his execution.

The U.S. Court of Appeals for the Eleventh Circuit earlier Wednesday had granted an injunction blocking the state from executing Smith without his pastor in the chamber.

Barrett, along with Justices Stephen Breyer and Sonia Sotomayor, joined Justice Elena Kagan’s concurring opinion rejecting the state’s application to vacate the injunction.

“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.

Justices Samuel Alito and Neil Gorsuch didn’t indicate how they voted. At least one of them had to have voted for Smith to form a majority to reject the state’s application, but high-court procedures don’t require justices to say how they voted on emergency applications.

Alabama officials claimed security risks with letting outside individuals in the chamber. They adopted a policy barring outside faith advisers to be present.

Thomas noted he would have granted the application, and Justice Brett Kavanaugh wrote a dissent, joined by Chief Justice John Roberts.

“Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction,” Kavanaugh wrote.

Kavanaugh had previously suggested the policy as a way to avoid problems, but that hasn’t worked out in Alabama or Texas, both of which adopted the policy but have been litigating religious-adviser claims nonetheless.

The justices simultaneously vacated an unrelated Eleventh Circuit stay for Smith without any noted dissent.

The case is Dunn v. Smith, U.S., No. 20A128, 2/11/21 Dunn v. Smith, U.S., No. 20A129, 2/11/21.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com