The distinction between dictum and holding is at once central to the American legal system and largely irrelevant. In the first systematic empirical study of lower court invocations of the distinction, we show that lower courts hardly ever refuse to follow a statement from a higher court because it is dictum. Specifically, federal courts of appeals meaningfully invoke the distinction in about 1 in 4000 cases; federal district courts in about 1 in 2000 cases; and state courts in about 1 in 4000 cases. In this Essay, we report these findings, describe our coding system, and offer a preliminary assessment of the implications of our study. Most notably, our findings raise questions about the vitality of traditional common law judging. Rather than play a significant role in the development of legal principles by treating extraneous statements in higher court rulings as nonbinding dicta, lower courts cede much of their common law power to higher courts. Higher courts can issue sweeping rulings that address questions not immediately before them, knowing that those statements will not be treated as dicta. In highlighting this dynamic between lower and higher courts, our study also casts light on the ongoing debate over judicial minimalism. The ability of courts to pursue the minimalist project of issuing narrow, fact-specific rulings is undercut by a regime in which lower courts look to higher courts for the enunciation of legal principles. Finally, our study is highly salient to the practice of law. Lawyers, although frequently referencing the holding-dictum distinction in legal briefs, have little reason to think that a lower court will ever invoke the distinction to rule against higher court dicta.
TABLE OF CONTENTS
I. THE HOLDING-DICTUM DISTINCTION IN THEORY
II. THE DISTINCTION IN PRACTICE
A. The Cases
A. Lower Court-Higher Court Dynamics
B. Dicta-in-Theory Versus Dicta-in-Practice
One of the spirited debates set off by the Supreme Court's health care decision (1) has nothing to do with the quality of the Justices' legal reasoning or what the policy consequences of the decision should be. Rather, it revolves around the question of whether Chief Justices Roberts's opinion should be considered "holding" or "dictum." Because the Affordable Care Act was ultimately upheld under the taxing power, (2) academics, practitioners, and the Justices themselves squared off on what precedential weight, if any, should be given to the Chief Justice's determination that Congress could not compel participation in the health insurance market under its commerce power. (3) For Randy Barnett, who championed the Commerce Clause argument embraced by Roberts, the opinion was holding because Roberts claimed that he would not have even considered the taxing power argument if the statute were a permissible use of Congress's commerce power. (4) For Jack Balkin, who vigorously defended the statute, the Roberts opinion was arguably dictum; (5) for Justice Ginsburg it was not "outcome determinative" and therefore unnecessary. (6)
Why this debate? Because dictum and holding are usually thought to be entitled to very different weight in the American legal system, as in other common law systems: "A court's holding defines the scope of its power; holdings must be obeyed.... Dicta is the stuff that doesn't have to be obeyed." (7) If Roberts's commerce power determination is a holding, then lower courts are bound to follow it in future cases; if it is dictum, their only obligation is to give his reasoning respectful consideration.
No doubt, the distinction between holding and dictum is central to the American legal system--in theory. (8) But theory is one thing, practice another. (9) The point of this Essay is to ask how much is really at stake in this debate over whether the Roberts opinion is dictum and, more generally, whether a court opinion can be labeled as holding or dictum. …