Are Justices Kavanaugh and Barrett feeling the threat of expansion?

Are Kavanaugh, Barrett, and Roberts trimming their sails because they’re afraid of Democratic court-packing schemes? From technofog at technofog.substack.com:

Questioning their lack of fortitude.

Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench -  CNNPolitics

Law professor (and prolific writer) Josh Blackman has an interesting piece in Newsweek, where he observes that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have “warned that Justices Brett Kavanaugh and Amy Coney Barrett lack backbone.”

He provides as an example the case of Fulton v. City of Philadelphia, in which the Court was presented with the question of whether the City of Philadelphia violated the First Amendment after it stopped referring foster children to a Catholic foster care agency after the agency “would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”

Justices Thomas, Alito, and Gorsuch were ready to overturn Supreme Court arguably incorrect precedent (dating back to 1990) that “the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice.”

Justices Kavanaugh and Barrett weren’t willing to take that step. (In its February 2021 decision, the Supreme Court held the City of Philadelphia violated the Free Exercise Clause of the First Amendment but the Court did not go far enough for religious freedom advocates.)

Justice Gorsuch, in his concurring opinion, called out the Court’s lack of courage:

“Dodging the question today guarantees These cases will keep coming until the Court musters the fortitude to supply an answer.”

Blackman notes this “personal attack no doubt reflects simmering tensions within the Court.”

He also observes how Justices Barrett and Kavanaugh (contrary to Thomas and Gorsuch and Alito) argued that California’s singing ban on churches could remain in place during the COVID pandemic. Barrett “thus used her first separate writing on the Court to rule against people of faith.”

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