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1/ Thread on Murphy v. Collier (Texas Buddhist execution case). The Court granted the stay on March 28. #SCOTUS 
2/ At the time, J. Kavanaugh wrote a two-page concurrence to explain why he voted to stay the execution. J. Thomas and Gorsuch would have denied the stay, but did not explain their reasons.
3/ Monday yielded more developments in this month-old case. It is strange for a Justice to write a dissent to explain their decision a month earlier. It is even stranger for a Justice to respond to these late additions. Yet, this is precisely what happened.
4/ J. Alito did not vote to deny the application on 3/28. But now he dissents from the grant of the application for a stay.
5/ Alito writes that he "did not agree with the decision of the Court when it was made." Never forget: the failure of a Justice to dissent from an order on the shadow docket does not mean that Justice agrees with the order. J. Alito's statement reaffirms that principle. #SCOTUS
6/ Alito continues that in death penalty cases, "ordinary procedural rules do not apply." (This statement echoes Justice Thomas's statement about abortion cases).
7/ J. Alito says eleventh-hour stay requests impair other interests of federal courts. Specifically, "the decisionmaking process may be compromised" and they "disrupt other important work." The implication here is that last-min stays of executions are not that important.
8/ J. Alito also echoes J. Thomas's "litigation strategy" point - "Attorneys do not serve such clients well by unduly delaying the filing of claims that hold a real prospect of relief."
9/ Finally, J. Alito focuses on the "emotional trauma" for the family and friends of the murder victim. Here, he does not consider the possible pain and suffering by the person to be executed.
10/ Through a series of rhetorical questions, J. Alito strongly suggests that the delay was deliberate, and the attorneys willfully threw this issue at the Court at the last minute.
11/ Next, J. Alito asserts that "By countenancing the dilatory litigation in this case, the Court, I fear, will encourage this damaging practice." J. Thomas made a similar point with respect to Bucklew
12/ J. Alito claims that the "tactics" in the Buddhist case were "just as unjustified" as the tactics in Dunn v. Ray (the Muslim case). In both cases, #SCOTUS presented w/ "with claims that raised complicated issues that cannot be adequately decided with hasty briefing"
13/ J. Alito disagrees with J. Kagan's Ray dissent, and J. Kavanaugh's Murphy's concurrence. He says that the case is not so "easily resolved" under #SCOUTS Establishment Clause precedents
14/ Alito explains that "imprisonment necessarily imposes limitations on a prisoner’s constitutional rights." In other words, the Court's "outside world" establishment clause cases are inapplicable. (I made a similar argument w/ respect to the travel ban: papers.ssrn.com/sol3/papers.cf…)
15/ J. Alito explains that Turner v. Safley rejected strict scrutiny for prisoner rights cases.
16/ The last time Turner was meaningfully examined by #SCOTUS was in Obergefell. J. Kennedy used this prison case to explain the scope of the fundamental right to marriage in the "outside world."
17/ Next, J. Alito explains why admitting the spiritual adviser of choice
"while a lethal injection is administered" could "set an unworkable precedent."
"while a lethal injection is administered" could "set an unworkable precedent."
18/ Note that the Court's order allowed the execution to proceed if "any Buddhist priest" was admitted--not the priest of Murphy choice. Alito explains "such a limited accommodation would not be acceptable in the outside world." He adds, "clerics are not fungible."
19/ Next, J. Alito turns to the RLUIPA claim, which does not turn on the Establishment Clause, the Free Exercise Clause, and Employment Division v. Smith
20/ Here, J. Alito raises a question: is "there is a difference between a State’s interference with a religious practice that is compelled [like Hobby Lobby and Holt v. Hobbs] and a religious practice that is merely preferred." (He adds a dig at RBG's Hobby Lobby dissent)
21/ Alito suggests that there may be some faiths where there is only a "desire," but not a requirement to have a cleric present "precisely at the moment of death."
22/ Alito presumes a substantial burden, but that assumption does not mean the RLUIPA claim would prevail. "unresolved factual questions" make the issue tougher, but RLUIPA is "more favorable to the prisoner."
23/ In conclusion, Alito acknowledges that Murphy and Ray's cases "may ultimately be held to have merit." But they "Egregiously delayed in raising [their claims]" And #SCOTUS "invites abuse" by "countenancing such tactics."
24/ J. Kavanaugh, joined by C.J. Roberts, wrote a statement respecting the grant of the application for a stay. Remember, he also issued a statement on March 28. This new statement "add[s] two points" "in light of" Alito's dissent.
25/ I can't think of a time where a Justice issued a statement, and at a later point in time, issued another statement on the same case, responding to a new dissent. I'm also not sure how the U.S. Reports will handle this? Publish the two Kavanaugh statements together? Separate?
26/ J. Kavanaugh said that the Texas "discriminatory state policy violated the Constitution’s guarantee of religious equality." Texas's new policy--no clergy are allowed in the execution room--"solves the equal-treatment constitutional issue" under Free Exercise and RLUIPA
27/ J. Kavanaugh does not address Turner v. Safley, and the question whether the Free Exercise rights of prisoners are different. But, Alito largely punts on the RLUIPA issue, so this omission is not critical.
28/ J. Kavanaugh writes that #SCOTUS stay "facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays"
29/ I am struggling with this post-hoc rationalization. In hindsight, everything worked out. But there was no way to know that in advance. Perhaps this change could only have been fixed by the state legislature, which meets every two years? That resolution would not be prompt.
30/ J. Kavanaugh points out several key differences why a stay was not warranted in Ray (Muslim in Alabama case), but a stay was warranted in Murphy (Buddhist in Texas case)
31/ Kavanaugh draws an important distinction. Ray raised an Establishment Clause claim to remove the Christian chaplain, and a RLUIPA claim to have his minister in the execution room. Neither claim works. Only an "equal treatment" claim (like Murphy) will work.
32/ In other words, the state has two options to eliminate the "equal treatment" problems: (1) prohibit all clergy in execution room, (2) permit all clergy in execution room. Because "State has compelling interest" to control access to execution room, Option #2 cannot be required
33/ Therefore, Option #1 is the only option a court can order. And this is precisely what Texas chose to do after the stay. In other words, because it would be unconstitutional for some people to have their clergy, no one can have their clergy.
34/ Kavanaugh adds that Texas's ability to quickly change the policy after the stay was granted suggests that Murphy's claim, unlike Ray's claim, was timely. Again, I am struggling with this post-hoc rationalization. How could the Court have known this fact in advance?
35/ This spat among the Court's conservatives is significant. J. Kavanaugh felt the need to explain himself, again, this time joined by the Chief. Alito felt the need to explain why he disagreed with the stay, even though he did not dissent in March.
36/ Also, Alito has sent a message to the states: in all prisoner free exercise cases, distinguish between "outside world" Establishment Clause case law, and the jurisprudence behind the bars. Though, this position won't help with RLUIPA. /end.
