Holding versus Dicta

• Author: Matthew E. K. Hall,Kristen Macher,James Khun
• Date: 01 June 2017
• Published date: 01 June 2017
• DOI: 10.1177/1065912916688112
• Subject Matter: Articles

https://doi.org/10.1177/1065912916688112

Political Research Quarterly

2017, Vol. 70(2) 257 –268

© 2017 University of Utah

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DOI: 10.1177/1065912916688112

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Article

The U.S. Supreme Court has long been recognized as a

policy-making institution (Dahl 1957; Murphy 1964).

The legal rules pronounced in the Court’s opinions can

substantially impact the broader evolution of law, public

policy, and public opinion for years to come (e.g., Hall

2011; Spriggs and Hansford 2000; Ura 2014; Wahlbeck

1997). As such, the critical outcome of a Supreme Court

controversy is not the disposition of the case (i.e., who

wins and who loses), but rather the content of the Court’s

opinion (see, for example, Clark and Lauderdale 2010;

Maltzman, Spriggs, and Wahlbeck 2000; Owens and

Wedeking 2011; Rice 2012). Because the Court is a mul-

timember institution, justices must bargain among them-

selves over opinion content. Which justices tend to

prevail in this bargaining process and control the content

of the Supreme Court’s majority opinion?

Previous studies advance competing theories of

Supreme Court bargaining. Various scholars argue that

the median justice on the Court (Epstein and Knight

1998; Martin, Quinn, and Epstein 2005; Murphy 1964),

the median justice in the majority coalition (Carrubba

et al. 2012; Clark and Lauderdale 2010), and the author of

the majority opinion (Bonneau et al. 2007) exert primary

influence over content. These studies provide invaluable

insight into the bargaining process. However, they all

implicitly rely on an important and possibly flawed

assumption: they assume that the same justice exerts

primary influence over all of the content in the majority

opinion. Yet, Supreme Court opinions include several dif-

ferent components, and these components might be con-

trolled by different justices.

We suggest a novel theory of divided opinion control.

We argue that control over the content of majority opin-

ions on the U.S. Supreme Court is often divided between

different justices. Specifically, we distinguish between

which justice controls the holding and which justice con-

trols the dicta. The holding is the Court’s determination

of a legal rule necessary to resolve the case. The holding,

at least theoretically, binds lower courts and the Supreme

Court in the future. In contrast, a dictum is a superfluous

statement that lacks any formal precedential value.

Nonetheless, dicta can have important implications for

the future interpretation and creation of legal doctrine.

We argue that holding and dicta comprise two separate

components of the majority opinion, and different jus-

tices sometimes control these separate components.

688112PRQXXX10.1177/1065912916688112Political Research QuarterlyKhun et al.

research-article2017

1Fors Marsh Group, Arlington, VA, USA

2University of Notre Dame, IN, USA

3Richards, Layton & Finger, Wilmington, DE, USA

Corresponding Author:

James Khun, Fors Marsh Group, 1010 N Glebe Rd., Arlington, VA

22201, USA.

Email: jkhun@forsmarshgroup.com

Holding versus Dicta: Divided

Control of Opinion Content on

the U.S. Supreme Court

James Khun1, Matthew E. K. Hall2, and Kristen Macher3

Abstract

Who controls the content of the majority opinion on the U.S. Supreme Court? Previous research offers conflicting

views; however, these studies assume that a single justice exerts primary influence over the entire opinion. In

contrast, we argue that different justices control holding (the legal determination that sets binding precedent) and

dicta (unnecessary comments that lack precedential value). We argue that the bargaining process enables the median

justice in the majority coalition to control holding, while the opinion author controls dicta. We test the empirical

expectations of our theory on the concurrence behavior of Supreme Court justices: special concurrences reflect

disagreement with holding, whereas general concurrences often reflect disagreement with dicta. The results support

our theory that the bargaining process divides control over holding and dicta, which can produce ambiguity and

confusion in the law.

Keywords

Supreme Court bargaining, agenda control, majority opinion, holding, dicta