Lawyers and courts have a structure for how they break down the words in a holding [a court’s ruling on a case]. The holding can be broken down into:
- The ratio decidendi, or the core legal reasoning applied to reach the final judgment.
- The dicta, or non-core reasoning of the holding. Dicta can be broken down into two further rough categories:
- Obiter dicta, or “things said in passing,” these are the phrases and comments and analysis of the court that have not been fully interrogated and oftentimes just represent the opinion of the judge on the matter or on hypothetical alternate scenarios.
- Judicial dicta, which are the opinions of the judge and court that, while not directly related to the matter at hand in the lawsuit, were fully fleshed out by the court and represent a coherent and cohesive logical argument to address the non-core issue or hypothetical.
Lawyers are trained that dicta, better defined as orbiter dicta, has no precedential effect. [Judicial dicta is treated as having precedential value, but it’s really more of an educated opinion than a rule]. Precedence is the highway that all legal cases drive on. At the core of all lawsuits is the concept that logical arguments that win a lawsuit will always win the same lawsuit with the same set of facts. It’s so baked into the bedrock of law that it takes what is normally considered a radical act of the court to deviate from past legal reasoning [one of the more famous examples is Plessy v. Ferguson, an 1896 case where the Supreme Court ruled that discriminating by providing separate facilities and accommodations was acceptable as long as the separate facilities/accommodations were “equal.” Plessy was overturned by Brown v. Board of Education in 1954, where the Supreme Court ruled that separate but equal facilities were inherently unequal and therefore violated the law]. While many high-profile cases in recent years have overturned precedent, it still ends up being a substantial minority of the Supreme Court’s activities [the Supreme Court has overturned previous Supreme Court decisions only 237 times over the past 250 years, 22 of which have happened since 2005]. The end result is a relatively consistent statement about law – winning arguments were winning arguments for a reason, and we can rely on those arguments into the future. It forms the foundation of the entire legal structure and allows complex litigation to march along at a brisk pace because we can say, “if you listen to the smart smart judges from the following several cases, you will find that they agreed with my argument and I should win this lawsuit,” rather than having to reinvent the wheel with every lawsuit. The extreme value of precedential effect also goes to explain why bar associations across the nation are cracking down on attorneys using AI with fake or hallucinated cases.
Back to the point – dicta, as taught by law school, has no precedential value. Lawyers are trained that we are not to care what a judge’s opinion on a hypothetical may be, for it did not win the battle. If the law around it changes, sure, the judge’s opinion may suddenly be turned into a valid argument, or the previous holding may no longer be valid because the fortress of reason was undermined by legislative sappers, but absent change, the winning arguments stay winning and lawyers are trained to largely ignore dicta as a shiny bauble there for little more than entertainment purposes and literary flow.
Unfortunately for all lawyers trained on the subject, some legal academics did a study a little over a decade ago to see what happened with all that dicta, all that worthless gristle on the meaty legal argument. (Klein & Devins, Dicta, Schmicta: Theory vs. Practice in Lower Court Decision Making, 54 Wm. & Mary L. Rev. 2021 (2013).) The findings were that lower courts would throw out a decision based solely on dicta at extraordinarily low rates. At the federal district court level, dicta was thrown out 140 times out of 327,524 cases, a rate of less than 1 in 2000. At state courts, it was even lower; roughly 1 in 4000 cases (60 of 295,452), with similar results in the federal circuit courts (20 of 80,421).
Translated out of statistics jargon – the point is that lower courts and higher courts are all applying precedential effect to all of the words of a court, with extremely rare exception.
Turned into an action item to walk away from this tip with: if you ever hear about a fringe part of a lawsuit and someone says “ah well, that’s just the judge’s opinion, it had nothing to do with the case,” the truth of the matter is that on a raw statistical level, the judge’s opinion has as much legal weight as the pure holding of the case. Until a higher court overturns a judge’s reasoning or paints over their reasoning with a more authoritative argument, the entirety of the judge’s opinion is treated as legally sound. If nothing else, this should caution you against taking cavalier actions on the belief that the judge is wrong or just expressing their personal opinion on a matter.