Fulton v. Philadelphia: Roberts has 9-0 majority opinion; late vote switches?

[brucejoel99]

Alito having Fulton feels expected, & terrifying all the same. Given who's already written what from November (& in tandem with what came out of their severability cases from last term), anything but Roberts writing for a fractured majority in the ACA case - presumably the entire conservative bloc in favor of standing & unconstitutionality, & then Roberts, the liberals, Kavanaugh, & Barrett ruling that an unconstitutional residual individual mandate is nevertheless severable from the rest of the ACA - would be a surprise at this point.

[brucejoel99]

Between her join on Obamacare & her concurrence - which is a definite must-read(!) - here, it's becoming clear that ACB might just be a lot more relatively "moderate" (i.e., a Kavanaugh) than many were willing to give her credit for last fall.

Nope

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

It’s for the adoption agency, btw.

On a rather technical point. The entire case seems to have been decided on the basis of the fact that the City of Philadelphia was permitted to grant exceptions to the mandate.

Yes, this feels like a 4D chess move from Roberts and the liberals.

Pretty much, yeah: despite being unanimous in nominal favor of CSS, it's a win for Philly in that the Court basically just said that if Philly removes the discretionary-exemption clause from their contract, then they're okay to require that CSS not discriminate, so long as they're not also providing other agencies with exemptions from the same requirement too, thus saving the Court from overturning Smith - for the time being, anyway - & truly delivering a blow to Philly & LGBTQ+ rights.

Breyer might be open to overruling Smith without establishing a strict scrutiny standard Alito wants.
https://twitter.com/mjs_DC/status/1405532195356168208

You & Stern continue to be massively wrong all the damn time, exhibit #74,365: Breyer explicitly didn't join the part of ACB's concurrence wherein she said that Smith should be eventually overruled. All he did with his partial join was just agree that this case was independent of Smith. If Breyer ever voted to overturn Smith, that'd be a shocker for the ages.

In any event, though, there do seem to apparently be 5 votes for saying that Smith was wrongly decided, even if they didn't happen to connect here. What's interesting to remember is that the Court put Arlene's Flowers on hold pending the Fulton ruling, & its cert petition is still pending after having been re-listed a bunch of times before it was held over. Perhaps the explicit 5 votes to overturn Smith - with Kavanaugh & ACB on board this time - may emerge there if cert's granted.

[brucejoel99]

Cert will be granted in Arlene’s Flowers. Alito writes the majority opinion. Roberts partially agrees with the judgment or dissents (a 5-1-3 or 5-4 decision).

[brucejoel99]

My vote switch theory is believed by credible sources.

Josh Blackman is a right-wing hack. I check on the Vololkh and SCOTUS parts of that site from time to time to get some perspective outside of my ideological bubble. For people like him, Justice Scalia wasn't even good enough and neither is this new 6-3 conservative majority. I read something from him that said there wouldn't be a true conservative majority until it becomes 7-2.

There could literally be a 9-0 conservative majority, but were 5 of them to merely just be of the Roberts/Kavanaugh/now ACB(?)/occasionally Gorsuch (i.e., Bostock, Native tribal rights, etc.) variety, it still wouldn't be good enough for them.