WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Associate Justice Brett Kavanaugh and U.S. Supreme Court Associate Justice Amy Coney Barrett arrive at the inauguration of U.S. President-elect Joe Biden on the West Front of the U.S. Capitol on January 20, 2021 in Washington, DC. During today's inauguration ceremony Joe Biden becomes the 46th president of the United States. (Photo by Drew Angerer/Getty Images)

Alabama is altering its lethal injection protocol and will currently permit an inmate to possess a religious adviser at the execution chamber while he or she dies. The state filed pleadings Thursday at the case of death-row inmate Willie B. Smith III. As Alabama explained:

In the time of this complaint, this was Defendant’s place, based upon security concerns. In light of this Supreme Court’s decision in this matter, however, Defendant is in the process of amending the ADOC’s lethal injection protocol to allow a convicted inmate to possess his spiritual advisor in the execution room.

The change comes only weeks after the U.S. Supreme Court handed down a shadow docket judgment in Smith’s favor; the Court’s order canceled Smith’s implementation on the grounds that Alabama’s refusal to permit a spiritual adviser from the implementation room was a breach of Smith’s religious rights.

After the judgment was issued, Justice Elena Kagan penned a brief concurrence stating,”Alabama hasn’t carried its burden of showing that the exclusion of all clergy members in the execution chamber is necessary to ensure prison security. So the State can’t now execute Smith without his pastor current, to facilitate what Smith calls the’transition between the worlds of the living and the dead. ”’

The breakdown of this Court’s ruling included both surprises and questions. Seven of the nine justices disclosed their votes. Chief Justice John Roberts and Justices Brett Kavanaugh and Clarence Thomas dissented. Justices Samuel Alito and Neil Gorsuch were silent, so at least one of these, but maybe equally, sided with the Court’s majority.

None of those Barrett/Gorusch/Alito trio could reasonably be considered a swing vote; therefore, their connecting with the Court’s liberal wing on a death penalty case was anything but predictable. Controversially-confirmed conservative heroine Barrett could have been a much likelier fourth in a Roberts-Kavanaugh-Thomas dissent. Additional Smith’s appeal came as a portion of a series of federal executions after the Trump administration’s ending of the moratorium on federal executions, in which votes fell largely along predictable liberal/conservative lines. On the other hand, the case involves the practice of faith, and the two Barrett and Kavanaugh have long prioritized religious liberty over competing rights.

In her scathing dissent in the death-penalty allure of Dustin Higgs, Justice Sotomayor intoned the names of the implemented by the federal government as Donald Trump spent his final days in office:

“Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr.. , Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To place that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.”

It’s the advice of Justice Kavanaugh, however, the Yellowhammer State appears to have heeded. In his dissent at the Smith case, Kavanaugh informed,”it seems clear that States who want to prevent months or years of litigation delays because of this [legal dilemma ] must figure out a way to permit spiritual advisors to the execution room, as other States and the Federal Government do. Doing this not only would satisfy inmates’ orders, but also would prevent still further flaws and deliver long overdue closure for victims’ families.”

The Alabama Attorney General’s office didn’t immediately respond to request for comment.

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