What if, in 1990, Chief Justice Rehnquist had assigned the opinion in Smith to O'Connor instead of Scalia? The result in the instant case, of course, would have been the same, but instead of junking the Free Exercise Clause, as Scalia basically did, the argument would have been that Oregon had met its compelling interest burden. So the doctrine of Sherbert etc. (whatever one thinks it actually was) stays in place-many of us would have castigated O'Connor for believing that Oregon had in fact demonstrated a compelling interest, but that would have gone to the application, not necessarily to the doctrine itself-and, I assume there would have been no RFRA. I wonder if we wouldn't have been better off, as a society, with that outcome, since RFRA is entirely a response to Scalia's specific opinion (which, I concede, did garner five votes).
So one question is why did Rehnquist give the opinion to Scalia? Is it "simply" that he was "due" for an assignment? One can ask the same question, of course, about Roberts and Heller. I have no problem with the outcome in Heller, but I think that Scalia's opinion is scandalously awful in the way he handles historical materials and leaves open many questions (beginning, of course, with the standard of review and why it is constitutional to deprive Martha Stewart of the fundamental right to defend herself merely because she lied to an FBI agent).
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