It’s often hard to know, at the end of a U.S. Supreme Court term, what was most important about it.

On the list for the current term may well be two decisions under the First Amendment’s Free Exercise Clause, which bans government from making any law prohibiting the free exercise of religion.

¯ The first decision came in late 2020.

By a 5-4 vote, Roman Catholic Diocese of Brooklyn v. Cuomo strikes down a New York executive order restricting worship services during the COVID-19, or Corona Virus Disease 2019, pandemic.

A few months earlier, this decision may well have gone 5-4 the other way.

The difference? Justice Amy Coney Barrett succeeded the late Justice Ruth Bader Ginsburg, a change much bigger than any one decision.

This is the most significant jurisprudential change in a court seat since Justice Clarence Thomas succeeded Justice Thurgood Marshall in 1991.

Moreover, the fulcrum – the swing vote on the court – had been Justice Anthony Kennedy until he retired in 2018. After Justice Brett Kavanaugh succeeded Kennedy, Chief Justice John Roberts often was the fulcrum.

Then, after Ginsburg’s death in 2020, the fulcrum, depending on the issue before the court, shifted to one of the five justices who appear to be solid originalists: Thomas, Samuel Alito, Neil Gorsuch, Kavanaugh, or Barrett.

Although it’s often good to have other justices join these five, these five, if necessary, can be a majority of a nine-member court without any other justice.

This happened in Roman Catholic Diocese of Brooklyn. The other four – Roberts plus Justices Stephen Breyer, Sonya Sotomayor, and Elena Kagan – dissented.

¯ Another Free Exercise Clause decision came at the end of the term.

Fulton v. City of Philadelphia addresses a faith-based organization’s challenge to Philadelphia’s requirement that the organization place children in foster homes in a way inconsistent with the organization’s religious beliefs.

The identity of the faith-based organization is beyond the point.

All nine justices agree that Philadelphia’s requirement violates the Free Exercise Clause. The debate among them is over the reasoning.

The court took up Fulton in part to consider whether a 1990 court decision – Employment Division, Department of Human Resources of Oregon v. Smith – “should be revisited.”

The faith-based organization urges the court to overrule Smith, because it insufficiently protects the free exercise of religion.

However, the Fulton majority – Roberts, Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett – sees no need to decide this, because even under Smith, Philadelphia’s requirement violates the Free Exercise Clause.

This is a common approach for courts: Decide what needs deciding today and save for tomorrow what doesn’t need deciding today.

Following this norm and writing for the Fulton majority, Roberts says the court “need not revisit” Smith.

Barrett, joining the majority yet writing separately in part to raise questions about “what should replace Smith,” says the court “need not wrestle with these questions in” Fulton.

Thomas, Alito, and Gorsuch disagree and in effect call in Fulton for following another norm: Judicial efficiency.

Why? Because Philadelphia has committed to enforcing its requirement.

And Alito and Gorsuch both assert it won’t take much for Philadelphia to bring its requirement into compliance with the Fulton majority’s decision and thereby with Smith.

Then, in Alito’s words, the same “parties will be back where they started.”

Philadelphia will require that the faith-based organization place children in foster homes in a way inconsistent with the organization’s religious beliefs. The organization will object. And the same parties will be back in court all over again. It will be expensive – in time and money – to bring another challenge to the Supreme Court to consider again whether to overrule Smith.

“What is the point of going around in this circle?” Alito asks.

“Dodging the question today guarantees it will return tomorrow,” Gorsuch writes.

Now the ultimate Fulton question – whether to overrule Smith – will go around and return to the U.S. Supreme Court tomorrow.

Dr. Randy Elf’s charts on Supreme Court appointees since 1968 is at https://works.bepress.com/elf/65.

COPYRIGHT ç 2021 BY RANDY ELF.