Have The Gundy and Fulton Moments Passed?
The intelligible principle test and Employment Division v. Smith are likely safe from Justices Kavanaugh and Barrett.
Gundy v. United States (2019) and Fulton v. City of Philadelphia (2020) signaled that the Court was open to changing course in two important doctrines. First, in Gundy, Justice Gorsuch's dissent, which was joined by the Chief Justice and Justice Thomas, signaled that the Court should rethink the non-delegation doctrine. Justice Alito also seemed to be on board in the appropriate case. Plus Justice Kavanaugh sent similar signals in his later opinion in Paul v. United States.
Second, in Fulton, Justices Alito, Thomas, and Gorsuch were ready to overrule Employment Division v. Smith. Justice Barrett wrote a short concurrence, joined by Justice Kavanaugh. They acknowledged that Smith had problems, but worried about what test would replace it. Barrett also posed some questions, which in theory at least, would help her get to yes.
Five years later, have the Gundy and Fulton moments passed?
FCC v. Consumers' Research solidified the intelligible principle test, at least in the context of non-independent agencies. Justice Kavanaugh's concurrence and Justice Barrett's silence signal this is likely the end of the road for the Gundy dissent. It is still not clear what line will replace "intelligible principles" so they will stick with the norm. They are likely content to use the major questions doctrine to detect dicey delegations. Indeed, Justice Kavanaugh explains that this test is a bipartisan favorite:
The intelligible principle test has had staying power—perhaps because of the difficulty of agreeing on a workable and constitutionally principled alternative, orbecause it has been thought that a stricter test could diminish the President's longstanding Article II authority to implement legislation. . . .
Presidents of varying policy views and political affiliations have accepted or advocated in favor of the intelligible principle test. See, e.g., Reply Brief for United States 3–6 (Trump); Brief for United States 19–38 (Biden); Brief for United States in Gundy v. United States, O. T. 2018, No. 17–6086, pp. 14–22 (Trump); Brief for United States in Whitman v. American Trucking Assns., Inc., O. T. 2000, No. 99–1257 etc., pp. 21–26(Clinton); Brief for United States in Mistretta v. United States, O. T. 1988, No. 87–7028 etc., pp. 20–25 (Reagan).
I am not a fan of these sorts of political arguments, but this is how Kavanaugh approaches the law. If some rule is good enough for Trump, Biden, Clinton, and Reagan, it is good enough for Kavanaugh.
What about Smith? The Court has denied cert in a number of petitions to overrule Smith. Yet, Justice Barrett has not written a word about the questions she posed. I was frankly never convinced she wanted to hear the answers to those questions. They were filler. She had to say something. Remember, Justice Barrett is a product of her scholarly home, and scholars at Notre Dame, including Phil Muñoz, have defended Smith on originalist grounds. Is there anything approaching a scholarly consensus to rebut that history? What is the theory? Justice Barrett is apparently not persuaded by Michael McConnell. Here too, Barrett and Kavanaugh may think the application of the "most favored nation" doctrine to religion cases will handle the bulk of the cases.
Time will tell if these moments have passed.