Amy Coney Barrett joins liberals to block an execution on religious liberty grounds.

Late Thursday night, the Supreme Court blocked Willie Smith’s execution in a surprising and somewhat puzzling decision that divided the court along unusual lines: Judge Amy Coney Barrett joined the court’s three liberals to rule that Alabama Smith, a devout Christian, his pastor in the execution room when he is murdered. The decision suggests that Barrett applies the principles of religious freedom more consistently than some of her conservative colleagues, even if it leads to an outcome favored by progressives and opposed by conservatives. However, there is a mystery at the heart of the court order: Since it is a “shadow roll” decision, we don’t really know who cast the fifth vote to stop Smith’s execution.

Dunn to Smith is the latest in a series of cases asking the government to prohibit death row inmates from taking a religious adviser to the execution chamber. 2019 is infamous Dunn to Raythe Alabama court allowed the imam of a Muslim prisoner to be banned from the chamber by 5–4 votes. All four Liberals were of the opinion. They accused Alabama of religious discrimination in violation of the First Amendment because it prisoners one Christian chaplain to accompany their last moments, but no imam. Less than two months later, the court appeared to change course: By 6–3 votes, Texas was prohibited from executing a Buddhist prisoner without the presence of his spiritual adviser. This time, Judge Brett Kavanaugh, along with Chief Justice John Roberts, noted that Texas allowed Christian chaplains to accompany prisoners in their final moments; if the state allows religious figures of one faith in the death chamber, Kavanaugh concluded, it must also allow those of other religions into the room.

In response to these decisions, Alabama simply ruled out everything religious counselors to accompanying prisoners when put to death. Willie Smith, yet another Alabama death row inmate, attacked this new rule under a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. The statute prohibits prisons from placing a “substantial burden” on a prisoner’s “religious exercise” unless that burden meets strict scrutiny. To meet that standard, prison religious restrictions must be “the least restrictive means” of promoting “coercive government interests” – an “exceptionally demanding” standard. Smith’s claim under RLUIPA is thus broader than previous inmates’ claims under the First Amendment. He doesn’t have to prove that Alabama has preferred other religions over his, just that the state’s total ban on religious figures in the death room is not the “least restrictive means” of maintaining prison security.

Judge Elena Kagan – accompanied by Justices Sonia Sotomayor, Stephen Breyer and Barrett – endorsed Smith’s argument Thursday evening. Security, Kagan wrote, is definitely a compelling government interest. But “past practices, in Alabama and elsewhere, show that a prison can provide security without banning all members of the clergy from the execution room.” Alabama argued that it cannot rely on members of the clergy who are not affiliated with the state or the prison to enter the room – but that is not true, according to Kagan. She pointed out that many states, as well as the federal government, have “allowed clergy without ties to the government to attend the execution of a prisoner” without interruption.

Either Alito or Gorsuch (or both) must have voted with Barrett and the Liberal judges.

“As far as I can tell, the presence of a member of the clergy (whether appointed by the state or independent) has nowhere interfered with an execution,” explained Kagan. “Alabama can take a number of steps to ensure that a member of the clergy will act responsibly during an execution,” including a background check, an interview, and “a pledge of criminal protection” that he will follow the rules. “What the state cannot do,” she concluded, “in accordance with strict scrutiny, is simply to assume that every member of the clergy will be untrustworthy – or put another way, that only the strictest restriction can work.”

Kavanaugh, accompanied by Roberts, was of the opinion. “Because state policies are non-discriminatory and, in my opinion, serve the overriding interests of the state in ensuring the safety, security and solemnity of the execution chamber,” he wrote, he allegedly allowed the execution to proceed. Justice Clarence Thomas also noted his dissent. That leaves us with one big, unanswered question: who cast the fifth vote to block Smith’s execution? By elimination, we know it was Samuel Alito or Neil Gorsuch. But in 2019, in an opinion that accompanied Gorsuch, Alito expressed skepticism about the argument that RLUIPA requires prisons to allow inmates to bring spiritual advisers to the death chamber. Alito valued the state’s claim that he could not trust an outside spiritual adviser to behave properly during the execution. And he speculated that “allowing members of the clergy and spiritual advisers, other than official chaplains, to enter the execution chamber” would “set an unworkable precedent.”

Obviously, Alito or Gorsuch (or both) changed their minds between then and now, because someone cast the casting vote with Kagan, Sotomayor, Breyer and Barrett to stop Alabama from killing Willie Smith. But in a “shadow roll” decision like this, issued without a full briefing or arguments, the judges don’t have to record their votes. Thus, the Supreme Court amended the law of freedom of religion and the death penalty without giving a majority position for the lower courts to follow – and without telling the public which court gave the crucial vote to protect Smith’s rights. (Smith will still be killed, albeit with the presence of a preacher who, in Smith’s words, “will lighten his struggles as he passes” and help “bring his repentance to God in the right way.” )

Aside from this puzzle, the most striking aspect of the court’s decision is in Dunn to Smith is probably Barrett’s alliance with the remaining liberal judges. There is no doubt that Barrett is very conservative, but her few votes so far indicate that she may be distinct from the court’s more nihilistic and partisan far-right justices. We know that justice deeply believes in religious freedom. But all judges claim to have this opinion, and not all apply it consistently – especially when it clashes with other conservative priorities, such as facilitating quick executions. Barrett, it should be noted, has voted to allow other executions to pass over the liberals’ dissidents. But she drew the line at Alabama’s extreme policies. With this court, progressives must get every victory they can get. And Dunn to Smith is a small but significant triumph for a principled application of genuine religious freedom.