Amish in Pennsylvania

[David S. Petron]

Rick Duncan wrote:
>If the
>Supremes wish to overrule Yoder, then they should do
>so and not rely on lower cts to antipate its demise.

I agree with this sentiment in general, but current law actually makes matters
worse.  The Supreme Court has affirmatively instructed lower courts NEVER to
predict the demise of any case until it is actually overruled.  See Rodriguez
de Quijas v. Shearson/American Express, 490 U.S. 477, 484 (1989); Agostini v.
Felton, 521 U.S. 203, 237 (1997). It's a somewhat strange rule, especially in
an area that changes as rapidly as Religion Clause jurisprudence.  See, for
example, the citations to Quick Bear v Leupp, 210 U.S. 50 (1908), in the
Mitchell plurality opinion.  Quick Bear has never been overruled, so lowers
courts should presumably follow it in cases where it factually on all fours.

For a really weird example (also First Amendment, but speech), see Florida
League of Professional Lobyists v. Meggs, 87 F.3d 457 (11th Cir. 1996), in
which the court said it was compelled to follow two Supreme Court cases from
1906 and 1864, despite all the doctrinal development since then.

David Petron
(in my personal capacity)