Smith Court’s misuse of precedent

Professor McConnell observed that Justice Scalia’s “use of precedent is troubling, bordering on the shocking.”   

Not only did Scalia create this idea of “hybrid” cases to get around otherwise controlling precedents such as Yoder, but the major precedent relied on by the Court, Minersville School District v. Gobitis, the first flag salute case, had been overruled three years after it was decided by West Virginia State Bd. of Educ. v. Barnette.  (“Relying on Gobitis without mentioning Barnette is like relying on Plessy v. Ferguson without mentioning Brown v. Board of Education."  57 U. Chi. L. Rev. 1124).  See also id.: “The second case cited by the Court, a Mormon polygamy case from 1879, was decided on the theory that the Free Exercise Clause protects only beliefs and not conduct – a premise that the Court repudiated in 1940.”