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March 24, 2022

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

March 24, 2022 at 10:28 AM | Permalink


Clarence Thomas is awesome. His dissent is compelling.

This case shows why federal courts need to be stripped of jurisdiction to hear capital sentencing issues.

Posted by: Federalist | Mar 24, 2022 12:29:24 PM

@Federalist: Perhaps Justice Thomas is just plain wrong. No one would call Justice Alito a friend of the defense bar, and even HE sided with the inmate.

Posted by: Marc Shepherd | Mar 25, 2022 7:34:10 AM

Actually, this case shows why both the Smith decision (giving too little protection to religious practices) and the legislative overreaction to Smith -- RUILPA and RFRA (which give too much protection to both religious practices and religious views on morality) were wrong. Under the current law, notwithstanding the Establishment Clause, the law requires special treatment if a person even claims that they have a religious belief that is infringed by the law as no court wants to get into the weeds of whether the asserted religious belief or practice is sincere. And because RUILPA applies mainly to prisons and zoning decisions, RUILPA has caused never ending headaches for prison officials trying to decide what accommodations they have to make to whatever an inmate can decide is required by the inmate's religion.

Posted by: tmm | Mar 25, 2022 10:57:26 AM

His dissent here may be "compelling," but I'll never know. in light of emails from his wife to Mark Meadows, I now have a hard time even looking at anything Justice Thomas writes. All this time he has had a blatant conflict of interest given his his wife's hard core promotion of Trump's Big Lie and the nonsensical conspiracy theories that are dislcosed in her emails. Is it any coincidence that he was the sole dissenter in the case that required the Archives to turn over Trump's papers to the Jan. 6 Committee? The very papers that disclosed his wife's emails to Meadows! Mr. Justice Thomas, dissent away; we're done.

Posted by: anon12 | Mar 25, 2022 8:53:10 PM

Federalist, if Thomas's dissent is so "compelling," how is it that eight other Justices didn't buy his argument?

Posted by: David from Texas | Mar 25, 2022 9:53:15 PM

Good to see the Fifth Circuit take one on the chin!

Posted by: Mary quite contrary | Mar 25, 2022 9:54:36 PM

tmm --

Nice insight about how RUILPA and RFRA were overreactions to Smith. I hadn't thought of that, but now that you say it, it seems spot on. I also think those statutes show a shrewd liberal exploitation of sometimes poorly considered conservative enthusiasm for religion.

Posted by: Bill Otis | Mar 26, 2022 12:43:25 AM

Thomas's conflicts of interest bring disrepute to the Supreme Court. Everthing Trump touches becomes garbage. Trump touched Thomas's wife; she became garbage; she touched her husband; he became garbage.

Posted by: Jane from Vermont | Mar 26, 2022 3:36:01 PM

I wonder what the reaction would be on this blog if a conservative called the only black Supreme Court Justice, and his wife, "garbage."

Posted by: Bill Otis | Mar 26, 2022 4:08:50 PM

David from Texaas --

If Harlan's dissent in Plessy is so "compelling," how is it that eight other Justices didn't buy his argument?

Posted by: Bill Otis | Mar 26, 2022 4:12:21 PM

Mr. Otis, I don't know that anyone ever called Harlen's dissent "compelling." Here, Federalist called the dissent of Thomas "compelling." So your response is a nice irrelevant diversion.

Posted by: Mary from Kentucky | Mar 26, 2022 8:56:57 PM

Virginia Thomas forwarded the following text to Mark Meadows and then added, "I hope its's true":

“Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”
rue wacko text. Difficult to believe that her husband was unaware of her wackines, and that it did not play a part in his lone dissent to try to keept her emails emails from the Jan. 6 committee.

Posted by: Dave | Mar 26, 2022 9:02:29 PM

Mary from Kentucky --

"I don't know that anyone ever called Harlen's dissent [from Plessy] 'compelling.'"

Well that's fine, because I didn't call it compelling either. But in fact it is, if not heroic -- or if you want to make the case that the Plessy majority had the better of the argument, feel free.

P.S. Somehow I think you're playing games with your moniker. Are you the same person as "Jane from Vermont"? It sure sounds like you are. What's the point? Is your next comment going to be by "Sally from Iowa"?

Posted by: Bill Otis | Mar 26, 2022 11:04:51 PM

Dave --

"Difficult to believe that her husband was unaware of her wackines, and that it did not play a part in his lone dissent to try to keept her emails emails from the Jan. 6 committee."

Interesting speculation. Got proof?

Posted by: Bill Otis | Mar 26, 2022 11:09:27 PM

Given that the Thomases have been married for decades, it would be shocking if CT was unaware of GT's views. Does it influence his decision-making? One hopes not, but with other justices there is not even a question, because they have the common sense the Thomases lack: to keep their mouths shut.

Most Justices and their spouses have understood, that with the privilege of serving on the nation's highest court, comes the responsibility to maintain not just the *reality* of being impartial, but also the appearance of it. Their failure to live up to that responsibility is a shocking error of judgment, even if CT's votes are not influenced by it at all. Of course, CT cannot control what GT says or does, but if he is at all troubled by it, it's a very well kept secret.

Justice Gorsuch voted with Thomas almost 90% of the time last Term. But you hear no such complaints about Gorsuch. Nor Alito nor the late Chief Justice Rehnquist. Scalia tripped up occasionally, but nowhere near to this extent. While CT and GT are not breaking any laws, we expect judges to uphold a higher standard than merely not being "provably" compromised.

Posted by: Marc Shepherd | Mar 27, 2022 11:35:01 AM

Marc Shepheard. You make excellent points. To follow up: now that we know that Ginni Thomas was actively encouraging the overthrow of the government, shouldn't Thomas resign or be impeached and removed? After all, how can he fairly decide constitutional issues, when his wife is and has been encouraging a coup?

Posted by: anon 12 | Mar 27, 2022 3:02:36 PM

Marc Shepherd --

I think you're conflating the two Thomases. The standards that apply to her (essentially none because she's a private citizen with her own rights to self-expression) are very different from those that apply to him (to avoid the fact and the appearance of pre-judgment in any particular case).

If she thinks exactly as she does, but said it only over the dinner table, would there be the present controversy? I'm not seeing how, even though the beliefs would be exactly the same.

So the question boils down to whether it's PRUDENT for her to be so public with her beliefs. If I were giving advice, which I'm not, my answer would be to step it back. As one of my old bosses at DOJ used to say, in the culture of law, if it's not necessary to say something, it's necessary not to say it. Restraint is almost always better than the urge to self-expression.

Are Justice Thomas's decisions influenced by it? Only he is in a position to know that. Everyone else is guessing. Guessing is not a basis to call (as some have) for resignation or impeachment. Indeed, guessing is not a basis for anything.

Thomas has been in the gunsights of the Left from the get-go, staring with the entirely unproven allegations against him at his confirmation hearing - allegations taking root in the ugly, racist belief that black men have uncontrollable sexual appetites. This racially-tinged antagonism to him affects how we should view the present controversy. By most accounts, including mine, he's consistently the most conservative Justice, and thus likely, other things being equal, to take a favorable view of executive branch authority. After 30 years, that is not a surprise.

In sum, while I think it would be advisable for Mrs. Thomas to be more circumspect, the case for Justice Thomas's recusal, and still less for (the long-time leftist goal) of his removal, has not been made.

Posted by: Bill Otis | Mar 27, 2022 5:10:08 PM

Mr. Otis, you are aware that the appearance of bias is as detrimental to the interests of justice as is actual bias. Whatever may be Thomas's actual opinions, given his wife's outspoken support of a political coup (a wife to whom he is "bonded" [his words]), Thomas has the appearance of bias when ruling on any case relating even tangentially to Donald Trump. If Thomas does not recuse himself from such cases, he brings the Supreme Court into disrepute.

Posted by: anon16 | Mar 27, 2022 6:02:48 PM

The stench of corruption now permeates the Supreme Court. That it has come to this; what a shame.

Posted by: sms | Mar 27, 2022 7:31:03 PM

Although I would not have used the term "garbage" as did Jane from Vermont (see above), she does make a point. Mr. Trump's tentacles have managed to poison almost everyone with whom he has come in contact; and now he's managed (albeit indirectly ) to latch on to Justice Thomas, infecting, besmirching and corrupting the Supreme Court.

Posted by: Heather | Mar 27, 2022 7:36:19 PM

@Bill Otis: I do understand that GT is not subject to the same rules as CT. Nevertheless, every other Justice's spouse, now and in the past, has seemingly understood what she does not -- that appearances matter. Or maybe she totally understands that and doesn't care: who knows?

While you and I know that CT is the most conservative justice, at least by some definitions, I think the current objections are not because he is Black or conservative, but simply because no other Justice's spouse is doing the things that GT does.

Posted by: Marc Shepherd | Mar 28, 2022 7:35:46 AM

The issue with GT and CT comes down to whether her involvement effectively makes her a party to pending cases. Most judges and justices understand that it would be improper to serve in a case in which the spouse or a child was an attorney for a party or an employee of a party. In my state, I know of judges who recused from cases involving the state merely because their child or grandchild worked for the Attorney General's Office even though that child or grandchild was not involved as an attorney in the case in front of the court.

Here the employer is not a full party. Instead, the employer is only involved as an amicus or a lobbyist for the policy at issue in the case. I don't know that this issue has arisen for other justices. I am unaware of any previous spouse that has been an employee of a group that is routinely involved in litigation and lobbying.

While I don't think any judge or justice would decide a case against their normal tendencies because of their relative's employment, the rule is based on the appearance of impropriety which exists two ways. The first is that, even if the judge decides in the way that you would predict knowing the facts and the issues in the case, some people will think that the judge made her decision to benefit the relative. The second is the thought by outsiders that you can improve your chances of success by hiring the judge's relative or getting his employer involved in the litigation. And I think that this type of appearance exists even if the relative's employer is only involved as an amicus or as a lobbyist.

Posted by: tmm | Mar 28, 2022 10:47:34 AM

tmm, having reviewed the comments above, I agree with your analysis. Any district court judge I have appeared before (too many to count in too many districts for too many years), whether arch-conservative or flaming liberal, would recuse himself in these circumstances from Trump-related cases because of the appearance of bias.

Posted by: Michael R. Levine | Mar 28, 2022 12:15:07 PM

Michael R. Levine, tmm and Marc Shepherd --

What a pleasure it is to see three consecutive comments by people who think about the issue at hand and stick with that.

There are two difficult questions this topic will have a hard time escaping. The first is how far the impulse for recusal should extend. If, for example, a given Justice's spouse (or sibling, etc.) works for an organization that takes stands on capital punishment, qualified immunity, decarceration, executive v. judicial authority, and the like, should the Justice recuse in all cases raising those issues, or if not, what standards should the Justice use to decide whether to recuse in any particular case?

The second question is who is to decide when there is an "appearance" of impropriety and by what standard. This is an especially vexing issue when the Justice, like Justice Thomas, is a polarizing figure, and the vexation becomes yet more complicated when you throw in race (which I would prefer never to do, but I don't run the show). I think it's overwhelmingly likely that those who like and admire Thomas from the get-go, and trust his integrity, will see no such appearance, while those who dislike and distrust him from the get-go will see it in short order.

More generally, the recusal question has lots of complications. Should Catholic judges recuse themselves from abortion cases? Should gay judges recuse themselves from gay rights cases? Should pacifist judges recuse themselves from cases involving the President's use of military power?

My instinct is that, without more, there should not be recusal in any of those examples. I raise them simply to illustrate that the topic is thornier than it might appear.

Posted by: Bill Otis | Mar 28, 2022 3:43:38 PM

Bill, greetings! With respect to "who is to decide," I'm reminded of one of Freud's observations that has always stuck with me: "Needless to say, no one who suffers from a delusion recognizes it as such." Is it fair to say that, at least many times, no one who suffers from a conflict of interest recognizes it as such?

Posted by: Michael R. Levine | Mar 28, 2022 6:12:42 PM

Michael R. Levine --

I agree with Freud (about that, anyway). The conundrum, of course, is that people who do NOT suffer from a delusion will be just as sure of their health (only correctly so) as those who are deluded. So one's own assurance turns out to be a poor measuring stick. On the other hand, the perceptions of others are ALSO a poor measuring stick, as those perceptions are highly likely to be colored by the biases, interests, and politics (or indeed, possibly delusions) of the persons doing the perceiving. So we're kind of stuck.

The current "rule" is that each Justice decides for himself/herself, and if we could devise something better, that would be a subject for another and much longer entry.

Posted by: Bill Otis | Mar 28, 2022 6:53:54 PM

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