Academic journal article Constitutional Commentary

The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky

Academic journal article Constitutional Commentary

The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky

Article excerpt


We treat judicial rulings, particularly those of the Supreme Court, as legitimate sources of constitutional authority. But what if a decision rests on a plain misconception, expressed not in the holding of the case but in influential dicta, because the Court failed to properly understand a historical precedent? No matter how frequently courts, the Justice Department, and scholars later cite the dicta, a misrepresentation is not a valid source of authority. The responsible step for the Supreme Court is to revisit the mistake and correct it. This article focuses on the "sole organ " doctrine that appeared in United States v. Curtiss-Wright (1936). For nearly eight decades the Court allowed the error to persist as a source of presidential authority in external affairs. As a result of the author's amicus brief filed with the Court on July 17, 2014, concerning the case of Zivotofsky v. Kerry, the Court was formally put on notice about the error. On June 8, 2015, the Court corrected the error while allowing other Curtiss-Wright errors to survive. The continuation of a judicial error for nearly eight decades demonstrates that the Court lacks a satisfactory system for removing erroneous dicta that improperly magnified presidential power and damaged the constitutional system of checks and balances.


In its 2013 decision in Zivotofsky v. Secretary of State, the D.C. Circuit relied in substantial part on erroneous dicta included in the Supreme Court's decision in United States v. Curtiss-Wright Export Corp. (1936). Although Curtiss-Wright concerned legislative--not presidential--authority, Justice George Sutherland added pages of extraneous material to concoct an array of independent, plenary, exclusive, and inherent powers for the President in external affairs. Sutherland wholly mischaracterized the "sole organ" speech given by John Marshall in 1800 when he served in the House of Representatives, distorting his remarks to imply expansive presidential powers in external affairs.

In fact, the purpose of Marshall's speech was to defend President John Adams for carrying out a treaty provision. Nothing in Marshall's sole-organ speech promoted or advocated independent presidential authority, yet Sutherland pressed that false doctrine. His error remained a potent factor after 1936 in expanding presidential authority beyond its constitutional boundaries and weakening the system of checks and balances. As explained in this article, Sutherland advanced other misinterpretations in Curtiss-W right, including the claim that treaty negotiation is assigned exclusively to the President and that sovereignty passed directly from the Crown to the United States. Scholars regularly called attention to defects in Sutherland's opinion, but the Supreme Court for 79 years failed to correct his errors.

This article highlights four broad issues about the judicial process: (1) the ease with which erroneous dicta appear in court decisions because they are added without guidance from briefs, oral argument, and the adversary process, (2) the pattern of dicta over time becoming accepted as the holding, (3) the distortions than can occur in presidential power because of erroneous dicta, and (4) the apparent inability of the Supreme Court to correct in timely manner erroneous dicta. The litigation process concentrates on misconceptions and errors in holdings, not dicta.

With Zivotofsky v. Kerry in 2015, the Court finally jettisoned the sole-organ doctrine. (1) It was always in the interest of the Court and the Nation to adhere to a judicial process that is thoughtful, informed, grounded, and principled, giving proper guidance to lower courts and the elected branches. (2) As explained in Section XII of this article, in making a correction in Zivotofsky the Court left in place other erroneous dicta in Curtiss-Wright and created a new model of presidential power that seems close cousin to the sole-organ doctrine. …

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