Gratuitous Dicta

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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9 Responses

  1. Nicole Huberfeld says:

    I don’t read it as dicta, I think Roberts intended activity/inactivity to become part of the cannon in some way and it is part of his holding. Although that aspect of the majority only has his one vote, the dissenters seem to shore it up to five separate votes on one (albeit misguided) theory.

  2. birtelcom says:

    But Ms Huberfeld, whether an argument in an opinion is dicta or not doesn’t depend on the intent of the opinion writer, it depends on whether the argument was logically necessary to the result. If the success of any one or more of three arguments would have led to a result, and one of them was successful, any discussion of the non-meritoriousness of the other arguments is necessarily dicta. This point is important not for purposes of the five justices who clearly agree on the Commerce Clause argument that Roberts articulates, but for the purposes of all other justices and judges ruling in the future on these matters, who are bound by institutional constraint to give stare decisis at least the benefit of the doubt. There is zero precedential constraint necessary with respect to Roberts’ Commerce Clause argument here because it was not part of the holding as a matter of logic. I’m sure Roberts wishes it otherwise, but that doesn’t matter.

  3. Howard Gilbert says:

    Roberts argues that because Congress called the mandate a “penalty” and not a “tax”, he could not consider whether it was really a tax until no other option existed to find the law constitutional. You may disagree with his reasoning, but his claim that he had to first reject the Commerce and Necessary and Proper claims before he could consider the Taxing claim is just as much a part of the decision as anything else. Therefore, the decision of the Supreme Court is that those parts of the decision were not dicta, and that decision of the Court (about what is and is not dicta) is binding on lower courts like any other decision.

  4. icculus says:

    I really don’t see how Roberts can ipse dixit make his commerce clause/necessary and proper clause arguments non-dicta simply by saying he had to reach them to apply the constitutional avoidance canon to the statute. It was not logically necessary to reach those specific holdings to get to his tax power argument. All he had to say was there there were constitutional concerns he had for the same reasons outlined by the dissent, but rather than reaching those holdings, he would apply the constitutional avoidance canon to construe the mandate as a tax and leave the other arguments to a case where they had to be decided.

  5. Joe says:

    #4 is reasonable but if five justices don’t agree, they matter more. If I was a lower court judge, I wouldn’t try it.

  6. Jon Weinberg says:

    Fact is, though, the distinction between holding and dictum matters much less when we’re talking about lower courts’ responses to statements in Supreme Court opinions, because lower courts tend to treat anything said in a Supreme Court majority opinion as binding, whether holding or dictum. That’s all the more true when it’s clear, as here, that a majority of the Court will vote to reaffirm the position. The discussion we’re having here would have practical significance only if, say, Justice Alito resigned tomorrow and were replaced by Justice Eric Holder. Then, lower courts would have to decide if they were bound by a statement that a majority of the Court no longer supported.

  7. AndyK says:

    If Roberts had not addressed the Commerce Clause issue, then he would be setting up a review scheme whereby the Court itself decides, with no deference to Congress, on what formal authority rests a statute. In theory he could overturn Medicare as an improper exercise of the Treaty Power.

  8. birtelcom says:

    Andy: If three different provisions of the Constitution would each be independently sufficient to support the constitutionality of the adoption of a particular law, why would it make even the tiniest bit of difference to the question of the constitutionality of the law which one or more (or for matter none) of those Congress actually happens to mention as what it believes is the source of its authority? Whether Congress happens to mention a particular source seems to me as important to the constitutionality question as whether Congress explains why it passed the bill on a Tuesday rather than a Thursday.

  9. birtelcom says:

    In thinking about dicta and the “five justices” issue, it might help to think about the effect if five sitting justices all published law review review articles reaching the same conclusion about a matter of law (for example a “New Federalist” view of the Commerce Clause). Would lower court judges who do not wish to be reversed be well-advised to follow that line for however long those five exact justices happen to be sitting on the Court? Well, yes. But that is not really what stare decisis and the distinction between holding and dicta is about.