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.”
