The Volokh Conspiracy

This morning the Court granted cert in St. Mary Catholic Parish v. Roy. The petition presented three questions:

1. Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct.

2. Whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions.

3. Whether Employment Division v. Smith should be overruled.

The Court, however, only granted on Questions #1 and #2. This will likely be yet another repudiation of Colorado's hostility to religious liberty. Has any other state lost so many cases in a single area of constitutional law?

Yet, the Court denied cert on the third question presented. This is the latest in a string of cert petitions that have asked the Court to overrule Smith. And in each case, the Court declines to go down that road.

It appears that Fulton was the closest we will get to overruling Smith. Justices Thomas, Alito, and Gorsuch were prepared to overrule Smith. But that only counts to three.

Justice Kavanaugh has intimated that in light of Roman Catholic Diocese and Tandon, there is no need to overrule Smith. He might be right about that at the Supreme Court, but the lower courts can still distort Smith to rule against religious liberty. Indeed, lower courts are somehow still relying on Lemon, if not by name, to find Establishment Clause violations.

What about Justice Barrett? I suspect she thinks Smith was correctly decided, or at least the decision was correct enough that it should stay in place. That is the received wisdom at Notre Dame Law School. Professor Rick Garnett, her close friend, former colleague, and fellow Scalia clerk, steadfastly defends Smith.

In September 2025, Liz Foley and Mark Pinkert wrote a lengthy op-ed in the Wall Street Journal about how lower court judges were resisting the Supreme Court. The piece had one side reference to Smith:

Although the court has shored up Free Exercise Clause rights over the past five years, it has yet to overrule Employment Division v. Smith (1990), a disastrous decision that gives government officials and courts far too much flexibility to burden religion.

From this single sentence, Garnett felt compelled to write a letter to the editor to defend Smith.

As Ms. Foley and Mr. Pinkert remind us, religious liberty is more vulnerable when government power expands. Those who cherish our "first freedom" should support and advocate policies and laws that respect religious institutions' autonomy and believers' consciences. But when it comes to exemptions from nondiscriminatory government action, the original meaning of the First and Fourteenth Amendments, and the better understanding of the judicial role in our democracy, point toward political solutions, not judicial micromanagement.

Lori Windham from the Becket Fund (counsel in St. Mary) wrote a sur-reply to the WSJ:

Prof. Richard Garnett is a stalwart friend of religious liberty, but he's mistaken that judges would become micromanagers if the Supreme Court overturned Employment Division v. Smith (Letters, Sept. 16).

That 1990 decision was universally unpopular when Justice Antonin Scalia wrote it, and it remains so today. It's why the federal government and more than half the states have passed legislation to ensure that when a law burdens religious practice, believers get their day in court. Instead of the "anarchy" that Justice Scalia and Prof. Garnett envisioned, this has yielded carefully considered judicial decisions in which religious claimants sometimes win and sometimes lose.

Between Garnett and the Becket Fund, Justice Barrett seems to agree with the former.

Litigants can and should keep preserving the question of whether Smith should be overruled, but I do not see a prospect to five, or even four votes.

Today the Supreme Court issued an order in Smith v. Scott, a qualified immunity case.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Zorn v. Linton, 607 U. S. ___ (2026) (per curiam). Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the petition for a writ of certiorari.

Smith had been floating around for a long time. It was first distributed to conference back in September 2025. Zorn, the case that caused the GVR, was first distributed to conference in November 2025, and was decided on March 23, 2026. Justice Sotomayor, Kagan, and Jackson dissented from that per curiam order.

The ordering here is unusual. Smith was in docket purgatory before Zorn, held while Zorn was being decided, and then about a month later, the Court GVR'd Smith with three dissents. The GVR did not happen right away, as per usual. The GVR took some time. There were some deliberations to be had. It is really unusual for a Justice to dissent from a GVR after an intervening precedent had been issued. Why shouldn't the lower court have an opportunity to apply the new precedent in the first instance? Isn't the usual criticism that the Supreme Court decides too much without giving the lower courts a shot? Perhaps it is even more unusual for the Court to GVR a case based on an un-argued per curiam decision--what some might call the "shadow docket."

I searched Westlaw for a case where one or more Justices would have denied the writ, following a GVR, but could not find anything. (Update: A few colleagues pointed out some cases that I had missed, though the practice is fairly rare.) It is common for Justices to vote to grant the writ to oppose a GVR. This split happened in Roman Catholic Diocese of Albany. But I can't recall a GVR accompanied by three Justices voting to deny. The GVR, by itself, does not settle the case. In theory at least, the matter could come back to the Court. But Justices Sotomayor, Kagan, and Jackson wanted to end this QI case right away. Or maybe this was some quiet protest of setting precedent on the emergency docket.

Not the most important news of the day, but I found it curious. Rest assured, no resignations are compelled by this order.

There have been troubling developments in both parties regarding antisemitism in the last few years, but I found this one especially perverse and disturbing. And of course, it shouldn't be just Jews who are worried about it, not only because everyone should oppose antisemitism, but because antisemitism on both left and right is based within the growing illiberal constituencies in both parties. In short, you don't have to be worried about antisemitism to wonder what the heck's going on when the Democrats nominate a supporter of a radical Islamist, Iran-allied anti-American terrorist group that has murdered hundreds of Americans, weeks after an immigrant tied to that group tried to murder dozens of American schoolchildren.

From the Jewish Insider's Josh Kraushaar:

The weekend ended with the news that Michigan Democratic delegates, at their statewide convention Sunday, nominated a Hezbollah supporter, Amir Makled, to the University of Michigan Board of Regents, choosing to oust a Jewish member, Jordan Acker, whose home and car were repeatedly vandalized with antisemitic graffiti and his family threatened.

Acker's offenses? He backed efforts to hold anti-Israel campus protesters at the University of Michigan accountable for assaulting police and engaging in intimidation of Jewish students, among other instances of student misconduct. He declined to support efforts to divest university funds from Israel, along with other members of the Board of Regents, as a radical faction of students had demanded.

Acker's non-Jewish Democratic ticketmate, Paul Brown, who also supported discipline against anti-Israel students, wasn't targeted and was renominated for election. But the Democratic delegates ousted Acker in exchange for Makled, who has posted on social media with comments praising Hezbollah's leaders and retweeted antisemitic messages from the conspiracy-theorizing influencer Candace Owens.

The results mark a new low for Michigan Democrats. Also over the weekend, Michigan Senate candidate Abdul El-Sayed told CNN that he believes the Israeli government is just as evil as Hamas.

I've been giving more thought to the Clean Power Plan leak. I keep coming back to the fact that this set of documents is a decade old. Obviously, one or more people have been sitting on these seven memos for a decade. These records could have been given to the New York Times at any time over the past five years or so--around when the "shadow docket" panic began. Why now?

Moreover, whoever decided to keep these seven memoranda a decade ago likely did not anticipate how singularly important the Clean Power plan ruling would become. Hindsight is always 20/20. The more likely scenario is this person retained many documents. I can only imagine that more documents may be coming from this source.

I do not think that the person who retained these documents is an outlier. It is far more likely that many people at the Court have retained confidential documents over the years. These records may have long collected dust in file cabinets and banker boxes, but are now likely being dusted off.

The Justices impose strict rules on how their papers may be released after their deaths. But do the Justices even know whether copies exist outside the building? I think the answer has to be no. In the wake of Dobbs, Justice Thomas said that the Justices could no longer trust each other and their staff. This decade-long leak has further eroded whatever trust remained in the building.

Speaking of Dobbs, remember that the version Politico reported on had the indicia of a printed draft with staples and other markings. If people purloined draft memoranda in 2016, then it stands to reason that similar actions were taken for draft opinions in 2022. There may be an unspoken tradition.

The usual reason why clerks and others maintain confidentiality is that they are afraid their reputation may take a hit if a leak is traced back to them. As Justice Scalia would say, any clerk who leaks information would face the end of their career. But it isn't clear that deterrent exists anymore. Whoever retained these documents a decade ago is probably far enough removed from the Court to no longer care about possible sanction from the Chief Justice's feckless investigation. Moreover, all statutes of limitations have run. Plus, there is no chance a D.C. federal grand jury would actually indict here. The defendant would likely be given a medal. Remember, the movement is being led by people intent on showing that the Supreme Court is a failed and illegitimate institution that must be reformed from the outside. If they are outed, it may boost their career. Back in 1972, Deepthroat went to Woodward and Bernstein to protect his identity. But what if Mark Felt simply wrote his own book about Watergate?

We are not out of the woods yet. We are just getting started.

Long-time readers may remember a series of posts I wrote circa 2020 about the conflicts between Chief Justice Roberts and Justice Kagan. One of my recurring themes was that the Chief Justice thought he was in control of the Court, but he clearly wasn't. Moreover, I suggested that the genesis of many of the leaks was due to frustration with the Court, and the Chief Justice's leadership in particular. Finally, I said that if the Chief could not right the ship, he should step down. To this day, people misunderstand my point. My call for resignation had nothing to do with any particular ruling or decision by Roberts that I disagreed with. If that was the litmus test, I would routinely call on the Court's progressives to call it quits. Rather, why would I tell Roberts--someone I agreed with about 90% of the time--to step down? The answer was a failure of leadership that was visible through publicly available information.

The leak in the Clean Power Plan case confirms much of how I've suspected the Chief manages his leadership of the Court.

Remember how John Roberts projects himself publicly. Roberts is an "institutionalist." He came to the Court wanting to reduce the number of 5-4 decisions. He didn't want the Court to seem partisan with teams on the right and teams on the left. He favored slow, incremental decisions.

Yet in the Clean Power Plan case, he tossed all of that caution to the wind. He led the charge to grant an unprecedented stay by a party line 5-4 vote. Justice Breyer offered a potential middle ground, which Roberts forcefully rejected as meaningless. Further, Justice Kagan's memorandum stated quite clearly how Roberts was venturing into novel territory. Roberts didn't care. And this wasn't a case where Justice Thomas or Scalia was pushing the Court to the right, and Roberts felt compelled to join so he could moderate. The Chief Justice was behind the wheel. Justice Kennedy said he was persuaded by the Chief in particular. Had Roberts done nothing, the stay would have been denied.

I don't think anyone could have anticipated what would happen with the emergency docket, but there was every good reason to recognize this ruling was novel. There is a reason I remember the exact moment in time when I read about the stay. For me, it was akin to asking "Where were you when President Kennedy was assassinated" or "Where were you when Reagan was shot." (I was not alive for either moment.) I remember the stay order with absolute clarity, because I immediately recognized how big a shift this was. Savvy judges on the D.C. Circuit, including then-Judge Kavanaugh, likely realized the impact as well. I would love to have asked Judge Silberman about this ruling. The Supreme Court told the nuclear D.C. Circuit "We don't trust you." If you want to mark the beginning of the rupture between the Supreme Court and the lower courts, this was likely it.

So then what do we make of the Chief Justice's purported institutionalism? It's not real. It was never real. When the Chief Justice says he is committed to the Supreme Court as an institution, that simply means he is committed to the Supreme Court as he sees it. The man cannot separate the two concepts. I'm sure John Marshall suffered from the same delusions of grandeur. Roberts is a judicial supremacist, and in particular, a SCOTUS supremacist. He could not brook the notion that lower court judges could settle this major question of national significance. It would have been untenable for Chief Judge Garland, the SCOTUS Susan Lucci (always on the short-list but never a winner), to have the final say. And the notion that the outgoing Obama Administration could lock in a policy without the Chief Justice having his say was also untenable. Roberts saved Obamacare so he earned this right to intervene. Thus, the modern shadow docket was born not to hurt a liberal president or help a conservative president. It was born to ensure the Supreme Court remained Supreme. Trump v. CASA, decided a decade later, was a manifestation of that philosophy.

When Roberts publicly rants about institutionalism, his colleagues have to roll their eyes. This is what we would call a loss of leadership. The other justices cannot take him seriously. It is unsurprising then there are so many leaks, even as the Chief purports to clamp down. In any other field, a CEO or head coach with this track record would have been long ago removed. But not on the Supreme Court.

Roberts should have stepped down in 2020. I think the Supreme Court would be much healthier today with anyone else at the helm--including Elena Kagan. Justices Thomas and Alito are the glue holding the Court together. They should stay as long as they can. The Chief Justice, by contrast, is still stuck in his own world. Maybe the Chief Justice should take a deep look in the mirror and realize that he bears a lot of the blame for the current crisis.