Washington(CNN) It was a late night for the nine justices Supreme Court justices Thursday, who were roused from their normal February recess to vote on emergency petitions that again exposed how deeply they are divided on certain social issues and emphasized the power held by Chief Justice John Roberts.
When two 5-4 orders came down, the chief justice was in both majorities. In one case, Roberts sided with the court's four liberals to block a Louisiana abortion access law. In the other, he joined his fellow conservatives to clear the way for the death of an Alabama inmate who wanted his imam to be present at his execution.
Roberts, who no longer lives in the shadow of Justice Anthony Kennedy's determinative vote, was in full charge.
He has been moving gingerly this term as the political branches disintegrated into partisan morass, by publicly sending a message about the rule of law and the role of collegiality. He even took the rare jab at President Donald Trump last November issuing a statement to defend the third branch from attack. But his votes Thursday night signaled that he is moving with precision, keeping the court below the fray for now, but paving the way for a hard-right turn on some hot button issues.
By voting with the liberals, Roberts was agreeing to block the Louisiana abortion law-- for now. The story could be different next term when abortion-rights supporters ask him to strike it down permanently, citing the Supreme Court's move in 2016 to reject a similar law in Texas.
But there is no indication that Roberts has had a change of heart from 2016 when he voted in favor of the Texas law, but was in the minority against Kennedy and the liberals. And there is fresh evidence that Kavanaugh will vote differently from Kennedy.
Behind the scenes, Roberts knows something else: there is an abundance of similar laws, pushed boldly by motivated conservative interest groups, making their way to the court. Already the justices are considering whether to take up a law from Indiana that requires fetal remains to be disposed of by burial or cremation. A separate provision says that the state can prohibit abortion that is solely motivated by the race, sex or disability of the fetus.
For now, the Louisiana law is on hold and bitter abortion related dissents are at bay.
The other order issued Thursday night in a death penalty case told a different story and allowed both liberals and conservatives to express their frustration. It didn't gather much attention as court watchers focused on the abortion order, but could have long-lasting consequences.
"The impression of Chief Justice Roberts taking control of the Court was unsubtle and unmistakable," said lawyer Joshua Matz of Kaplan Hecker & Fink. "And the high-stakes ruling on abortion eclipsed the conservative justices' painful betrayal of the religious freedom principles they claim to value so deeply."
The case concerned Domineque Ray, a Muslim inmate who had been convicted for his part in the 1995 rape and murder of a teenage girl, Tiffany Harville, in Selma, Alabama. Lawyers for Ray argued that Ray's religious rights were violated because the prison forbid him from having his imam by his side at his execution. The prison's policy allows a Christian chaplain in the room, but officials blocked the imam, citing security concerns.
"The execution protocol specifies," Alabama's Attorney General argued in briefs, that the "only people allowed in the execution chamber with the condemned " are prison employees. The chaplain, they said, is a "member of the execution team" who "will pray with the condemned if the condemned so desires."
The 11th Circuit granted a stay holding that Ray had "demonstrated a substantial likelihood of success on the Establishment Clause" claim.
But at 9:09 p.m. ET, the court lifted that stay, clearing the way for the execution "because Ray waited until January 28th, 2019 to seek relief, we grant the state's application to vacate the stay," the majority said.
But Justice Elena Kagan, taking lead and joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor did not mince her words.
Kagan said that Ray had put forward a "powerful claim that his religious rights will be violated at the moment the state puts him to death." And that the appeals court wanted the time to hear the claim in full.
She accused her colleagues of short circuiting the "ordinary process," saying that Ray had only learned about the policy on January 23, and filed his request five days later.
"There is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber," she wrote. And Kagan questioned the majority's decision to reject the appeals court finding that Ray had brought his claim in a timely manner.
David French of the conservative National Review blasted the majority as well.
"I have no sympathy for Domineque Ray. The man was convicted of raping and murdering a 15-year-old girl, an act so heinous that the death penalty is appropriate and just," French wrote. "But Ray, no matter his crimes, still enjoyed the protections of the United States Constitution. Yet last night the state of Alabama and the Supreme Court failed to respect those protections at the most crucial of moments — they denied him access to an imam at the moment of his death."