Is Employment Division v. Smith in jeopardy?

[Geoffrey Howe]

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?

[brucejoel99]

Not really. If anything, those recent decisions have supported Smith: finding non-neutral laws, applying the relevant test as to how non-neutral they are, & granting the expected ruling of "either make these laws neutral or prove to us why they shouldn't be." Nothing has really been changed, except for clarifications being granted as to how Smith actually applies.

[I’m not Stu]

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.

[brucejoel99]

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.

Thank you, dear clairvoyant, for gracing us with your knowledge.

[I’m not Stu]

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

[Donerail]

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

[I’m not Stu]

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.

[brucejoel99]

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.

And everybody knows that 3 equals 5! /s if it wasn't painfully obvious

[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’m not Stu]

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.

[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?

[I’m not Stu]

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.

[I’m not Stu]

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.

[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.

[I’m not Stu]

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.

[Skill and Chance]

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.

You always assume SCOTUS behaves just like an ideologically polarized legislature, when the reality is far more complicated. 

[I’m not Stu]

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

[I spent the winter writing songs about getting better]

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.

[I’m not Stu]

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.

[I spent the winter writing songs about getting better]

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.

He never had one to begin with. 3 is not a majority of 9.

[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...

[I’m not Stu]

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