Scalia was not a god, no matter how often he was right.
And, yes, I think it is one time (there may have been others) when Scalia hypocritically did what he said the Liberal activist judges were always wrongly doing - sticking a legal finger in the air to see which way the political winds were blowing.
The “Native American” religious practices were not part of nor contributing to the epidemic of illegal drugs at the time. The practices using peyote were far older than the “war on drugs” and had never been viewed in their own right as contributing to any spike in the use of illegal drugs, except in a minor fashion with some early sixties “hippie” interest which faded.
Now it is Catholic charities paying the price for the mixing of “constitutional” law with the legislative war on drugs.
“Naturally, all eyes will be on the newest justice, Amy Coney Barrett, to see if she’s persuaded by the view of her former boss, Justice Scalia, or the argument that Smith cannot be justified under an originalist view of the Constitution.”
ACB could take the originalist view and still agree with Scalia, because he only thought that lawmakers, not judges should the case in question.
Scalia was NOT the great conservative justice that most “conservatives” say he was. Scalia threw the constitution, conservatism and the country under the bus in his religious zeal against intoxicating drugs. Scalia was a leftist big government bureaucracy FDR New-Dealer, not because that was his philosophy but because he had to give those people everything they wanted in order to maintain the legal underpinning of his fanatical war on drugs without a constitutional drug prohibition amendment authorizing the federal government to carry out such a war. The fully FDR-filled Supreme Court opinion Wickard v Filburn (1942) is what authorizes the war on drugs and it also authorizes every other federal bureaucracy and regulation by ignoring the text of the constitution concerning regulation of interstate commerce, intended only to prevent unfair competition among states, and extending it to mean that the federal government could regulate anything “affecting” interstate commerce, which then meant all commerce. That lets the feds ban lawn darts or home-grown pot because it **might** cross state lines. Before the 18th Amendment banning alcohol, the Supreme Court had refused to give the feds unlimited commerce power. After Prohibition, the FDR government did not want to bother with changing the constitution to get what it wanted, so it changed the court and every government since has liked it that way.
Today, there is only 1, *ONE*, actual original textualist on SCOTUS, Clarence Thomas. All the rest, ACB almost certainly included, are nanny state big government anti-origianalist FDR New Deal leftist, or total sellouts to them in order to protect their little piece of “conservative” nannyism.
If only that observation were still true today. Heck, Governors across the country are doing so on a regular basis without regard for the 1st Amendment.
Ping, interesting, I never heard of the “Smith” decision.