Courts, Lawyering, Supreme Court

Holdings, Dicta, And Stare Decisis

-Submitted by David Drumm (Nal), Guest Blogger

Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.

Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so. Sub-categories of dicta, such as judicial dicta, and their different levels of authority, make the determination even more perilous. Dissenting opinions are always considered dicta.

Vertical stare decisis refers to the power of higher courts to bind the decisions of lower courts. All courts are bound by vertical precedent to follow the holdings in the decisions of the Supreme Court. Vertical stare decisis is generally considered absolute.

Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations. There is a strong presumption that prior judicial articulations of the law are correct and generally should be followed. Horizontal stare decisis preserves a stable doctrine and prevents cycling.

While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:

A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.

Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

Portland Examiner contributor Dianna Cotter claims the reference to the natural-born citizen clause in this passage is part of the holding. The Wikipedia entry correctly identifies this reference as obiter dictum.

H/T: Legal Theory Lexicon, Judith M. Stinson, Michael Abramowicz and Maxwell Stearns, Robert G. Scofield.

1,351 thoughts on “Holdings, <i>Dicta</i>, And <i>Stare Decisis</i>”

  2. Ballantine,

    It’s too bad that Leo is too much of a coward to defend his theories. As a scientist, I would never endorse a hypothesis who’s author was unwilling (and clearly unable as well) to defend it in an unmoderated forum–let alone one that could clearly be falsified.

    Portney,

    Ballantine would never be allowed to post on Leo’s blog because Leo is a gutless coward and birthers are the only ones it is debate that insist that something absolutely must be due solely to the fact that they believe it–obots have both the law and the facts backing them up on every particular. Why are you surprised that your decision to display bad character provokes people to point out your lack of integrity?

  3. ballantine, for a lawyer you appear much like myself in the delightful intellectual marvel of having such a topic to ponder.

    “I also thought that one could plausibly argue that Congress could make new natural born citizens per naturalization statute. If Paliament could make new natural born subjects, why couldn’t Congress.”

    You wonder at reasonable questions in light of our history and the method of our government (past and present). Perhaps you are right that such is possible.

    I am at a loss as to why there are such histrionics on both sides of the debate, or worse, insistence that due solely in the fact they believe something so it absolutely must be. John Jay, congressional debates, Vattel, a particular legal tome that might have been on someone’s desk, or whatever are of little worth unless granted more by a court of law.

    I’m not a lawyer but I do enjoy reading the decisions. The justices understand something that most of us lack, that the voice of that particular day may be heard for centuries. Quite a responsibility! It is just amazing their careful work to be fair to the statute. I digress…

    Anyway, wanted to say thanks for your candid legal opinion and quiet approach to a topic folks get rather animated about.

    On another note, I did see the above comment regarding Leo’s find. Any thoughts? Have you considered visiting his den and converse with him on his blog? I would certainly love to witness such a discussion.

  4. “From Leo’s blog:

    he calls this a “Frankenstein inspired patchwork” in reference to page 48 of Maskell’s memo…”

    So all Leo can do is quibble over things like this rather than ackowledge his analysis is wrong. Kwok Jan Fat was about someone who was declared a natural born American citizen by the department of immigration, a determination that was later reversed after a determination that they had been decieved about his birth being in the United States. This later judgement was reversed by the Supreme Court and the issue remanded to trial on where he was actually born the Court saying “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” It was obviously talking about Kwok Jan Fat.

    It is curious how people think Donofrio is some kind of legal guru. His birther and carco cases were jokes. Has he done anything else in law? Sorry to say, he pretty much gets nothing right on this subject and ran away from here as soon as people starting challenging his nonsense.

  5. mrjr101,

    Since I have proved that Leo’s interpretation of Minor is either dishonest or incompetent and considering the undeniable fact that the Vattelist argument, in addition to being completely unsupported in law, is also racist (as it was the reasoning used by the majority in Dred Scott–an unquestionably racist ruling), I’d like to know if you are a racist, have racist sympathies, or if you are so lacking in intelligence and integrity that you will seize on any argument you can find no matter how specious in your seditious quest to overthrow the Constitution and the legitimate POTUS?

  6. @portney One thought that leaps out is the author’s insistence that the 14th is the base for born citizenship and that congress can statutorily create other born citizens. This seem nonsense. Per WKA and RvB, such is not within the criteria of court’s understanding of the 14th. If I understand that this is not the case and congress is not naturalizing but in fact has the power to create other instances of NbC…is it plausible that it could create an NbC that is born abroad but one of the grand-parents was an American citizen irrespective of the non-American citizenship of the parents?

    The memo is certainly much stronger on the topic of persons born in the US as there is so much authority to cite. Howver, when talking about the foreign born being President he is suggesting plausible theories that have been suggested by scholars but not really fully vetted by the Court. I think one can debate how such theories could prevail without re-visiting some of these prior rulings. I suggested up-thread somewhere that it is plausible that the founders thought of the term “natural born” to be defined under the common law as modified by statute. I also thought that one could plausibly argue that Congress could make new natural born citizens per naturalization statute. If Paliament could make new natural born subjects, why couldn’t Congress. Maskell makes these same points and is more bullish on them than I am. Howver, I believe the Court would constue the meaning of “natural born” quite broadly as there is little definative evidencence to construe it narrowly and the Court is not going to disqualify people based upon speculation.

  8. From Leo’s blog:

    he calls this a “Frankenstein inspired patchwork” in reference to page 48 of Maskell’s memo…

    “Put it all together and you get the following monstrosity:

    …the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….’

    But the Supreme Court never said that.  Here’s what they actually said:

    ‘It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649 , 18 Sup. Ct. 456.”  Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920).”

    I have yet read page 48 of this memo, but is this really an impecable piece of legal scholarship? I’ll keep reading.

  9. slarti, I beg your pardon regarding the reflection on being an educator…you’re a “dispassionate” scientist. Thank you for the clarification and further confusion.

  10. Portney,

    I have no personal animosity towards you, I just believe that people such as yourself add no value to discussions (in fact, I think you preclude the possibility of substantive discussion). Take your comment (11:17pm)–you would have us believe that “considered as” means “considered as except for the only difference between natural born and naturalized citizen. Of all of the examples of your dishonesty and inanity, this is the most recent. I’m curious what you learned from my mindset–especially considering you have no idea what my mindset is based on. I will admit that I no longer have an open mind on birthers–for essentially the same reasons that I no longer have an open mind regarding creationism vs. evolution, whether or not we landed on the moon, or if the World Trade Center collapse was caused by controlled demolition. I’ve looked at both sides critically and found that all of the merits lie on one side of each of these issues and not the other.

    Where did you ever get the idea that I’m an educator? I’m a scientist–I’m not trying to teach you anything, I’m experimenting on you and observing your behavior. I provide stimuli and you respond to them (or don’t, which is also a result). I don’t really have any more emotional attachment to you than a biologist does to a virus she’s studying. My profession requires me to be as dispassionate and objective as possible as well as being my own worst critic (if there’s a mistake in my work, I’d better be the first one to find it…). Sorry if it also means that I don’t suffer fools gladly.

    No, I’m not.

  11. slarti, I am not judging you as to the manner of your commentary in light of being an educator. You are not solely defined by your calling. I just find it surprising that your profession requires you to be tolerant and patient with those that are less knowledgeable than yourself. I can’t imagine that you would ever treat a student that has paid for instruction in the ways that you have treated me. Social media is wonderful in many ways but certainly allows for liberties towards strangers that we would never contemplate in person. I realize that this is not your first conversation with those that do not agree with your worldview and it is easy to be rude and dismissive with the assumption that I deserve no less. I would ask that you try to be more civil and pleasant in any further conversations that we might enjoy. It would be appreciated.

  12. slarti, my reading of the NA of 1790 recalls the phrase “considered as” and not that they in fact were. Why do you insist on addressing me if you hate my guts to such an extent? Would it not be easier to ignore me and live your life in peace? I have no personal animosity with those that are as certain as to the question as yourself. In fact, I have learned much from those of your mindset.

  13. Portney,

    Your doubts are pretty solid evidence that the CRS report is an impeccable piece of legal scholarship that only an idiot would disagree with.

    Seeing that Congress has made statutory natural born citizens in the past (in 1790–the law may have been repealed, but it was never challenged as not within the power of the Congress), I think it’s clear that when you say “nonsense” we should take it to mean “unquestionably true”.

  14. ballantine, I still haven’t read the CRS in it entirety and must admit that most of it will take some time to digest (who am I kidding, much will be lost on me). One thought that leaps out is the author’s insistence that the 14th is the base for born citizenship and that congress can statutorily create other born citizens. This seem nonsense. Per WKA and RvB, such is not within the criteria of court’s understanding of the 14th. If I understand that this is not the case and congress is not naturalizing but in fact has the power to create other instances of NbC…is it plausible that it could create an NbC that is born abroad but one of the grand-parents was an American citizen irrespective of the non-American citizenship of the parents? I think the memo has holes, I’m just not sure how to frame the counter argument as of yet.

  16. Bill,

    I do not agree with that 1967 thingie. From reading Wong Kim Ark, and from understanding the history of the term, I think natural born citizenship status can be legislated by Congress for people born outside the United States.

    Squeeky Fromm
    Girl Reporter

  17. Squeeky……yer funnee. I especially like the suggestion on researching low rent trailer parks as the transformative place to find Constitutional scholars.

  19. Squeeky,

    It takes a truly pathetic loser to threaten a person using their name (especially when that person freely disclosed their own name) from an anonymous identity. Also, what makes you think I’m not doing research on birthers already? If you’d like to know more, send me an email at:

    (first name)@(last name).net

    (you can get my name from ED’s comment above–I wouldn’t want to deny him the satisfaction of thinking that he’s accomplishing something by revealing my name… birthers are a pretty frustrated bunch. After all, it can’t be much fun to root for the Washington Generals…)

    ED,

    I’ve proven myself capable of civil discourse on this site many times. I assume that when I go off on my rants the regulars just tune me out which is fine–they aren’t my audience. You and your fellow birthers are my audience. I want you to know that there are people–highly educated people–that think of birthers as unpatriotic scum and yet another example that the lunatic right-wing fringe has been given way to much credence. I want you to know this because somewhere, deep down (or maybe not so deep), it hurts any human being to know that another human being thinks of them as worthless parasites. I do this not out of malice but in the hopes that one day my words will plant a seed of doubt in someone’s mind which will eventually grow into a cure for their delusion. Failing that, getting birthers riled up is good–I want birthers to get as much publicity in as wide a forum as possible to present their arguments on their merits (or lack of same). The more birthers talk, the more they drive a wedge between independents and the right–so keep up the good work and by this time next year President Obama will have won re-election.

    Bill,

    As Ballantine has suggested, I doubt that any court would rule against someone in John McCain’s circumstances…

  20. @ Squeeky esque

    In light of the latest CRS memo, Is this legal opinion entered into the congressional record still valid in your opinion?

    Was George Romney eligible afterall ?

    Thanks!

    “Dr C at Obama Conspiracy writes:

    In 1967, an essay entitled “Natural Born Citizen,” by the Hon. Pinckney G. McElwee of the Bar of the District of Columbia, was entered into the Congressional Record by Mr. Dowdy. This is an extensive and scholarly treatment of the history and the cases related to the term “natural born citizen”. It was written in the context of a possible candidacy of Governor George Romney (born in Mexico) for president.”

    [To summarize; a natural-born citizen of the United States, as that term is used in the Constitution of the United States, means a citizen born within the territorial limits of the United States and subject to the laws of the United States at the time of such birth. This does not Include children born within the territorial limits of the United States to alien parents who, although present with the consent of the United States, enjoy diplomatic immunity from the laws of the United States, and, as a consequence are not subject to the laws of the United States. Nor would this include children born within the territorial limits of the United States to alien enemy parents in time of War as a part of a hostile military force, and, as a consequence not present with the consent of the United States, and not subject to the laws of the United States. But, this does Include children born to alien parents who are present within the territorial limits of the United States “In amity” t.e. with the consent of the United States, and subject to its laws at the time of birth. U.S. v. Wong Kim Ark 169 US 649, Luria v. U.S., 231 US 9, Minor v. Happersett 88 US 162.
    I find no proper legal or historical basis on which to conclude that a person born outside of the United States could ever be eligible to occupy the Office of the President of the United States. In other words, In my opinion, Mr. George Romney of Michigan Is Ineligible to become President of the United States because he was born In Mexico and is, therefore, not a natural-born citizen as required by the United States Constitution.]

    http://nativeborncitizen.wordpress.com/2010/07/14/natural-born-congressional-record-house-june-14-1967/

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