Is Employment Division v. Smith in jeopardy?

[Greedo punched first]

It’s quite late and I might not be thinking straight, but don’t the recent (“conservative”) decisions about COVID restrictions and religious liberty go against Smith?

It will be formally overruled even if John Roberts refuses to do so.

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Fulton v. Philadelphia will formally overrule Employment Division v. Smith.

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Alito wants to overrule Smith but there was no indication at oral argument that the rest were interested in going that far.

Not at oral argument, but we know Thomas and Gorsuch agree.

[Greedo punched first]

Even if there's a majority in a vacuum to go after Smith, I think there are strategic concerns that inform the thinking of (at least some) justices — there is a risk of going too far, too fast. If they're gonna go after Roe and Bakke, which seem to be the top targets for now, they'll use this opinion to limit (but not overturn) Smith. If need be, they'll kill it formally a few years down the road.

I thought only Roberts has strategic concerns.

[Greedo punched first]

Even if there's a majority in a vacuum to go after Smith, I think there are strategic concerns that inform the thinking of (at least some) justices — there is a risk of going too far, too fast. If they're gonna go after Roe and Bakke, which seem to be the top targets for now, they'll use this opinion to limit (but not overturn) Smith. If need be, they'll kill it formally a few years down the road.

I thought only Roberts has strategic concerns.

Why would you think that?

I doubt Roberts voted to grant cert in the Mississippi abortion case.

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I bet the farm that Fulton v. Philadelphia will be a broad ruling where Employment Division v. Smith is formally overruled. I predict a maximalist 5-1-3 decision written by Alito. I think Roberts will be the lone justice who sides with Catholic Social Services, but doesn't vote to overturn Employment Division v. Smith.

[Greedo punched first]

I bet the farm that Fulton v. Philadelphia will be a broad ruling where Employment Division v. Smith is formally overruled. I predict a maximalist 5-1-3 decision written by Alito. I think Roberts will be the lone justice who sides with Catholic Social Services, but doesn't vote to overturn Employment Division v. Smith.

CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so. But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.

Unanimous decision written by Roberts (and 6-3 to not overrule Smith). I would like to collect your farm.

Alito probably originally had the decision, but the liberals switched their votes.

[Greedo punched first]

This also helps back up my belief.
https://twitter.com/steve_vladeck/status/1405542838067109896

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I bet the farm that Fulton v. Philadelphia will be a broad ruling where Employment Division v. Smith is formally overruled. I predict a maximalist 5-1-3 decision written by Alito. I think Roberts will be the lone justice who sides with Catholic Social Services, but doesn't vote to overturn Employment Division v. Smith.

CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so. But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.

Unanimous decision written by Roberts (and 6-3 to not overrule Smith). I would like to collect your farm.

Alito probably originally had the decision, but the liberals switched their votes.

That doesn't make any sense. The decision is assigned by either the Chief Justice or the most senior Justice in the majority (in this case Clarence Thomas.) Roberts wrote the decision so if he assigned it to Alito originally, the liberals couldn't force him to write it by joining it, nor would he even want to considering  the difference between his decision and Alito's concurrence. Also Alito only had Thomas and Gorsuch join him, so there wasn't a majority for his position.

Because Alito lost his majority.

[Greedo punched first]

The liberals probably switched their votes late and joined Roberts to limit the damage, with Kavanaugh and Barrett switching to a narrower decision too.