Is Employment Division v. Smith in jeopardy?

[Donerail]

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

[Donerail]

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.

[Donerail]

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?

[Donerail]

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.

[Donerail]

"The liberals switched their votes" doesn't make any sense — the two counterfactual possibilities here are 1. there was a majority for overturning Smith that fell apart because Alito pushed too hard, or 2. there was only a majority for the narrower path offered by Roberts. While it's possible that Roberts only decided to write after Alito lost the majority, the liberals weren't voting to overturn Smith in either case.

Not sure why you would think the length of the concurrence suggests it was originally intended to serve as a majority when it may simply suggest that Alito is very mad and very interested in his own voice. His dissent in Bostock was 107...