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In fairness, it is not entirely clear how the Court will decide this case — four justices appear likely to side with the Texas government, and four of them appear likely to side with John Ramirez, the inmate who seeks spiritual counsel in his final moments. Justice Neil Gorsuch, who is likely to cast the deciding vote, was silent during Tuesday’s arguments.

But even if Ramirez — who does not seek to prevent his execution, just to ensure that he receives spiritual comfort while he is dying — prevails in a 5-4 decision, that decision will reveal a great deal about the justices who vote against him.

Tuesday alone was revealing. The four justices who expressed the most skepticism of Ramirez’s claims raised arguments that would never have flown in previous religious liberty cases. Justice Brett Kavanaugh, for example, suggested at one point that Ramirez might be denied a religious accommodation if granting it would increase the risk of something going wrong during his execution above “zero.” Several justices raised concerns that accommodating Ramirez’s religious beliefs would simply create too much work for the Court.

Not long after Justice Amy Coney Barrett took her seat last fall, by contrast, the Supreme Court declared that the rights of the religiously observant are so potent that they can overcome the public’s interest in stopping the spread of a deadly pandemic.

That was effectively the holding of Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a 5-4 decision handed down at the height of the Covid-19 pandemic, which exempted houses of worship from New York state public health rules that limited the number of people who could gather at the same time for religious services — ostensibly because the state didn’t impose the same restrictions on secular businesses such as grocery stores. The purpose of the state regulation was to prevent such services from becoming superspreader events, but the Court held that these public health rules must bend in the interest of religious liberty.

Roman Catholic Diocese was a revolutionary decision that significantly expanded the rights of religious objectors, but it wasn’t the first time the Court held that religious liberties overcome the rights of others. In Burwell v. Hobby Lobby (2014), the Court allowed employers to deny their employees health plans that cover many forms of birth control — holding that the religious rights of those employers trump their workers’ right to health coverage required by federal regulations.

The Court also handed down two cases in the last four years siding with religious objectors who sought an exemption from prohibitions on anti-LGBTQ discrimination — though, admittedly, both of those cases were decided along fairly narrow grounds.

Narrow as these latter two decisions may have been, however, they are part of a broader pattern. When the government sought to enforce a rule that religious conservatives objected to, the Court consistently sided with religious conservatives.

But now that conservative Texas claims that it should be able to sidestep the religious rights of a death row inmate, at least four of the justices seem likely to take a very different approach than the one the Court took in cases like Roman Catholic Diocese and Hobby Lobby.

As it turns out, religious liberty cases are often quite difficult. When the government seeks to enforce a law that some people of faith find objectionable, it often has very good reasons for doing so — reasons at least worth weighing seriously against their constraint on religious liberty. Only now does the current Court seem to be recognizing this.

How the Ramirez case arose

Ramirez is the latest chapter in a fight that began nearly three years ago in Dunn v. Ray (2019) — a 5-4 decision holding that a Muslim inmate in Alabama could not have his imam present during his execution, even though the state permitted Christian death row inmates to have their pastor present.

The Ray decision was widely condemned, even by prominent conservatives, for its cavalier approach to religious freedom. As Justice Elena Kagan wrote in dissent, one of the Constitution’s “clearest command[s]” is that “one religious denomination cannot be officially preferred over another.”

Not long after Ray, the Court started to back away from that decision. Most notably, in Dunn v. Smith (2021) the Court seemed to suggest that all death row inmates should be allowed to have a spiritual adviser present at their execution. Although Justice Brett Kavanaugh dissented in Smith, he also conceded that “States that want to avoid months or years of litigation delays should figure out a way to allow spiritual advisers into the execution room.”

The Ramirez case presents a slightly more complicated question than Ray or Smith. In Ramirez, Texas will allow Mr.  Ramirez’s pastor to be present during his execution, but it will neither permit that pastor to audibly pray or to lay hands on Ramirez. Texas, in other words, will allow a spiritual counselor to be present at Ramirez’s execution, but it doesn’t want that counselor to provide any actual counsel.

Nevertheless, the eight justices who spoke during the Ramirez oral arguments appeared to break down along the same lines that they broke down in Smith.

In Smith, four justices — the three liberals plus Justice Barrett — joined an opinion by Justice Kagan arguing that death row inmates have broad religious rights. Citing a federal law that prohibits prisons from imposing “‘a substantial burden’ on a prisoner’s ‘religious exercise’” except in extraordinary cases, Kagan wrote that this statute will generally require inmates to receive spiritual counsel during their executions if they desire it.

In response to the state’s argument that a spiritual adviser might disrupt an execution, Kagan and the three other justices who agreed with her were unmoved. A state “can take any number of measures to ensure that a clergy member will act responsibly during an execution.” It “can do a background check on the minister; it can interview him and his associates; it can seek a penalty-backed pledge that he will obey all rules.” But it cannot “simply presume that every clergy member will be untrustworthy.”

Meanwhile, three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — dissented in Smith. That leaves either Gorsuch or Justice Samuel Alito as the fifth vote for the inmate in Smith, although neither of these two justices wrote an opinion or otherwise revealed their vote.

After Tuesday’s arguments in Ramirez, however, it appears unlikely that Alito provided that fifth vote in Smith — his questions were almost entirely hostile toward Mr. Ramirez. That leaves the uncharacteristically silent Gorsuch as the likely deciding vote.

The case against Ramirez, briefly explained

It is difficult to describe Alito’s case against Ramirez charitably, as that case seems largely rooted in concerns that a too expansive religious liberty standard would create a lot of work for Alito and his colleagues.

As Alito correctly noted, the Court understands religion to be a deeply personal thing. Someone with an idiosyncratic religious belief that is shared by no other person may still seek a legal accommodation for that belief.

Alito worried that, because the law requires prisons to accommodate unusual or even unique religious beliefs, a decision for Ramirez would open the floodgates to more litigation by death row inmates. “We can look forward to an unending stream of variations,” Alito complained, after Ramirez’s lawyer conceded that his client will be satisfied if his pastor can touch any part of Ramirez’s body during the execution.

Once Ramirez is accommodated, Alito feared, the Court will have to go through “the whole human anatomy,” as future inmates bring cases asking to have a pastor lay hands on their face, or their heart, or some other part of their body.

Alito’s concerns were shared by Roberts, Thomas, and Kavanaugh. Thomas fretted about inmates “gaming the system” by claiming to adhere to religious beliefs that they do not actually hold. Kavanaugh expressed similar concerns that an inmate might try to “move the goalposts” in future cases.

Roberts, meanwhile, was less derisive than his three conservative colleagues, but he asked several times how prison officials (and courts) are supposed to determine if a prisoner’s expressed belief is sincere. Suppose, for example, that a condemned man claims, on the eve of his execution, that he must convert to another faith — and that the conversion process takes three months. Should the state have to delay this man’s execution until the conversion ritual is complete?

The underlying concern driving these four justices appeared to be that, if they don’t draw a line in the sand in Ramirez’s case, then they will be flooded with lawsuits by death row inmates seeking religious accommodations. As Kavanaugh put it to Ramirez’s lawyer, “if we rule in your favor in this case, this will be a heavy part of our docket for years to come.”

Why should death penalty cases be different than any other religion case?

One reason why this line of questioning by these four conservative justices was so frustrating is that most of them appeared unmoved by similar concerns when conservatives sought religious accommodations in the past.

Consider, for example, Alito’s concern that, once the Court opens the door to religious liberty lawsuits, it invites a wave of new lawsuits from people with unusual beliefs seeking disruptive accommodations. That is, indeed, exactly what happened after Hobby Lobby was decided.

After Hobby Lobby established that religious employers may deny birth control coverage to their employees, the Obama administration tried to accommodate those employers by allowing them to fill out a form that would exempt them from the legal requirement to cover birth control (while also providing the government with enough information to provide birth control coverage to the uncovered employees on its own). But then several employers filed new lawsuits, asserting that they had a religious objection to filling out the form.

Similarly, take Roberts’s concern that it is difficult to determine whether someone who raises a religious objection is sincere. This is also a persistent problem in religious liberty cases that don’t involve the death penalty.

Consider, for example, Eden Foods v. Sebelius (2013), a federal appeals court case that was identical to Hobby Lobby in every important way but one. The difference was that the CEO of Eden Foods, the plaintiff in this case, gave a series of interviews to reporter Irin Carmon in which he revealed that he objected to providing birth control coverage to his employees largely for libertarian reasons, and not for religious reasons.

Nevertheless, the Obama administration decided not to litigate this case any further once it lost Hobby Lobby, a tacit admission that it is very difficult to convince courts that an individual’s religious beliefs are insincere — even when their own words can be used against them.

The point is that the Court’s right flank is perfectly willing to accept all of the uncertainties that arise from an expansive religious liberty regime when religious conservatives seek accommodations. So why should Ramirez be any different?

Alito offered one possible explanation during the Ramirez arguments, that death penalty cases tend to arise “at the very last minute.” Whenever an execution is scheduled, federal courts — and especially the Supreme Court — are typically inundated with emergency motions and other last-ditch efforts by lawyers trying to save their client’s life. These unexpected motions have likely declined in recent years — because the number of death sentences in the United States has dropped sharply since the 1990s — but they, no doubt, can be very frustrating to a justice who doesn’t want to cancel their plans to work late.

But that’s also the job that every justice signed up for.

Underneath it all is the Republican Party’s delegitimization of democratic rule and embrace of Trump’s lies about election fraud.

In a 2021 working paper, the University of Washington’s Jake Grumbach attempted to quantitatively measure the health of democracy in all 50 states — and to figure out what correlated with its declines in certain places. He found that Republican control over state government — and only Republican control — is strongly correlated with large and measurable downturns in democracy.

“Results suggest a minimal role for all factors except Republican control of state government, which dramatically reduces states’ democratic performance,” he writes.

North Carolina is one of the key examples in Grumbach’s paper: Its democracy score starts to plunge in 2011, the last time Republicans had control of the redistricting process. The maps they came up with that time were struck down in state courts; there’s already a case pending about the new maps.

But there’s no guarantee the outcome will be the same. In the 2019 case Rucho v. Common Cause, the Supreme Court ruled that the federal judiciary does not have the power to block unfair partisan gerrymanders. Rucho is one in a series of recent Supreme Court cases gutting voting rights protections, which have made it much easier for state legislatures to get away with extreme gerrymanders. Similarly, Republicans in Congress, in thrall to Trump, have become more willing to engage in anti-democratic practices — culminating with the events of January 6.

This broad-spectrum Republican turn against democracy does not mean that the American political system is doomed. But what happened in North Carolina last week should remind us that we are in the midst of a rolling political crisis — the authoritarian radicalization of one of our two major parties.

One tension at the conference is transparency. Some countries are reluctant to disclose details about their emissions and open themselves up to scrutiny and blame for their part in climate change.

Negotiators are also working on finalizing rules for how countries can trade emissions credits across borders to meet their climate targets. The rules around international carbon markets, which were hotly debated in past meetings, may finally get nailed down at COP26. Still, it’s poised to be a slog. “I’m not going to say it’s going to be an easy win,” Jennifer Tollmann, a senior policy adviser at E3G, a think tank, told reporters on Tuesday.

There is also the ever-present issue of money. Many countries facing the impacts of climate change right now say the wealthier countries that produced the most historical emissions should help pay for losses and damages. They want an agreement in writing that they’ll get support, but wealthy countries are resistant to any wording that hints at any obligation or liability on their part.

As for the impacts of climate change that lie ahead, countries continue to fall short. Twelve years ago at COP15 in Copenhagen, countries agreed to pool $100 billion per year by 2020 to help developing countries mitigate and adapt to climate change. That funding target was missed and may not be reached until 2023.

It’s still not clear whether all these issues will be resolved by the end of the meeting on Friday, and the summit may go long. Negotiators may punt yet again on some of the more contentious issues, arguing that no deal is better than a bad deal.

What happens if COP26 doesn’t meet its goals?

There’s a lot riding on this meeting, but it wouldn’t be the first international gathering built on high hopes that dragged on without delivering conclusive results. Some discussion items may get shifted to the agenda for the next COP, likely to be held in Egypt next year.

The good news is COP meetings aren’t the only kind of global climate action, as was evident in the past four years. When the US began withdrawing from the Paris Agreement under former President Donald Trump, cities and local governments set their own climate goals. Many companies have also committed to zeroing out their contributions to climate change.

Even after Trump left office, some of that momentum has strengthened. Nearly 20 percent of the world’s largest publicly traded companies have set net- zero emissions targets, for example.

Countries have also set up bilateral and multilateral climate agreements to curb emissions, with pairs or small groups of countries teaming up to share resources, finance clean energy, and trade carbon credits. Cities and countries are also pursuing climate change tactics on their own, for example by phasing out gasoline-powered vehicles. Renewable energy sources like wind and solar power are getting even cheaper, giving them an advantage to fossil fuels in many markets. And some governments have concluded that the costs of leaving climate change unchecked far exceed the costs of reducing emissions.

But COP26 is a unique moment to get governments in the same room, and it holds the potential for major changes in how the world addresses climate change. A meeting like this may be ill-suited to the task of tackling an urgent global crisis, yet it’s an important opportunity to commit governments to a better course.

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