Have The Gundy and Fulton Moments Passed?
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 silen
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