The staying power of erroneous dicta: from Curtiss-Wright to Zivotofsky.

• Author: Fisher, Louis
• Position: Abstract into VIII. How Courts Compound Judicial Errors, p. 149-184

ABSTRACT

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.

INTRODUCTION

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.

1. THE JERUSALEM PASSPORT CASE

   On July 23, 2013, the D.C. Circuit held that congressional legislation in 2002 "impermissibly infringes" on the President's power to recognize foreign governments. (3) The court acknowledged that "[n]either the text of the Constitution nor originalist evidence provides much help in answering the question of the scope of the President's recognition power." (4) By what reasoning did the D.C. Circuit decide that an implied executive power to recognize foreign governments is superior to an implied power of Congress to formulate passport policy?

   On five occasions in its decision, the D.C. Circuit relied on erroneous dicta that appeared in the Supreme Court's 1936 ruling in Curtiss-Wright. (5) Quoting from the Court's 1998 decision in Clinton v. City of New York, (6) the D.C. Circuit said the Court recognized that "in the foreign affairs arena, the President has 'a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.'" (7) Citing Curtiss-Wright a second time, the D.C. Circuit claimed that the Supreme Court, "echoing the words of then-Congressman John Marshall, has described the President as the 'sole organ of the nation in its external relations, and its sole representative with foreign nations.'" (8) The D.C. Circuit also cited United States v. Belmont (1937), relying on Curtiss-Wright to claim that the President has authority to speak as the "sole organ" of the government in matters of recognition. (9) Citing Belmont again, the D.C. Circuit referred to the Curtiss-Wright "sole organ" doctrine. (10) Toward the end of its decision, the D.C. Circuit returned a fifth time to Curtiss-Wright to describe the President as the "sole organ of the nation in its external relations.'" (11)

   With its dependence on Curtiss-Wright, the D.C. Circuit admitted it was placing confidence in judicial dicta rather than a judicial holding. Citing language from one of its decisions in 2006, it stated: "To be sure, the Court has not held that the President exclusively holds the power [of recognition]. But, for us--an inferior court--'carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.'" (12) That passage contains three qualifiers: carefully, considered, and generally. As will be explained, the dicta in Curtiss-Wright lacked care and consideration, as is every subsequent citation to the sole-organ argument.

   Referring to one of its decisions in 2010, the D.C. Circuit said that dictum is "especially" authoritative if the Supreme Court "has reiterated the same teaching." (13) Without doubt the Supreme Court has regularly cited the sole-organ doctrine from Curtiss-Wright, but no matter how often the Court repeats an error it remains an error and should not be used to decide the scope of presidential constitutional authority. Errors, even with repetition, do not emerge as truth.

2. CAVEATS ABOUT DICTA

   A holding by the Supreme Court is subject to subsequent challenges, at times leading the Court to abandon an earlier holding as no longer valid. What of erroneous dicta? Are they relatively easy to tuck into an opinion? If later discovered to be in error, is there a procedure to correct them? Do litigants ever pay attention to erroneous dicta? Is there a clear distinction between holdings and dicta? Those questions guide this section.

   Courts frequently resort to both holdings and dicta. No one expects that custom to end, even if the results can damage the development and reputation of law. After authoring Marbury v. Madison, (14) Chief Justice John Marshall expressed concern in 1821 about the degree to which litigants read the decision carelessly, failing to separate its core holding from "some dicta of the Court." (15) When it became evident that attorneys were rummaging around Marbury to find nuggets favorable to their cause, he insisted that general expressions in a case "are to be taken in connection with the case in which those expressions are used," and if those expressions "go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision." (16) A question before a court, he said, must be "investigated with care, and considered to its full extent." (17) In Marbury, the "single question" before the Court was "whether the legislature could give this Court original jurisdiction in a case in which the constitution had clearly not given it." (18) That was the core holding. Everything else, including possible claims of judicial supremacy, amounted to dicta. Some of the language in Marbury was not only too broad, Marshall said, "but in some instances contradictory to its principle." (19)

   Various efforts have been made to distinguish between acceptable and unacceptable dicta. In his book, The Nature of the Judicial Process (1921), Benjamin Cardozo noted that judges must decide cases "swathed in obscuring dicta, which must be stripped off and cast aside." (20) It was a "mystery" to him how judges, "of all persons in the world, should put their faith in dicta." (21) There was a constant need to separate "the accidental and the non-essential from the essential and inherent." (22)

   Writing for the Supreme Court in 1933, Justice Cardozo analyzed state court rulings in an effort to interpret a statute in Oklahoma. He remarked: "An opinion may be so framed that there is doubt whether the part of it invoked as an authority is to be ranked as a definitive holding or merely a considered dictum." (23) The meaning of the latter term is developed in this statement: "At least it is considered dictum, and not comment merely obiter." (24) To Cardozo, a considered dictum is entitled to respect. In contrast, the erroneous dicta included by Justice Sutherland in Curtiss-Wright cannot be described as considered, reasoned, studied, or a reliable source of law. It is not entitled to respect.

   A 1994 article by Michael...