Starting Points

It is a truth universally acknowledged that a judge who is asked to decide a thorny dispute must be presented with competing arguments from precedent. One party will claim the case law demands, or at least strongly suggests, a certain outcome. The opposing party will contend the proper inference from the case law is actually quite the contrary. And so the meaning of precedent will be placed before the judge for resolution.

The threshold question is how to determine what the relevant precedents stand for. I noted in Chapter 1 that the most common answer revolves around the difference between holdings and dicta. To recap, a holding is “[a] court's determination of a matter of law pivotal to its decision” or “a principle drawn from such a decision.” Dicta, by comparison, are comments that are unnecessary to a decision “and therefore not precedential.”Footnote ¹

This framework defines a precedent's scope of applicability as commonly described. Holdings receive deference in future cases. Dicta do not; they are relevant only to the extent future judges find them persuasive. Chief Justice Marshall made the point nearly two centuries ago in noting that while expressions that “go beyond the case … may be respected,” they do not control “in a subsequent suit when the very point is presented for decision.”Footnote ² Concrete rulings that are necessary to resolve a case command deference from future courts. Asides and hypotheticals are the stuff of dicta.

The distinction between holding and dicta continues to pepper the Supreme Court's opinions. The justices have made clear that unnecessary dicta are generally dispensable. An illustrative statement from 2013 explains that “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”Footnote ³ Elsewhere the justices have added that repeating dicta over time does not change their nonbinding character, leaving future judges at liberty to discard dicta they find unpersuasive.Footnote ⁴ Only a case's rule of decision and its “preceding determinations” command formal deference going forward.Footnote ⁵ Whenever a court treats a proposition as unworthy of deference because it ventured beyond “the narrow point actually decided,” the holding/dicta distinction is at work.Footnote ⁶

The impact of the distinction is especially apparent when the Supreme Court depicts its past statements as peripheral or overbroad. Take the Court's recent decision in United States v. Alvarez (2012). Alvarez struck down a federal statute that prohibited certain lies about one's military service. A plurality of justices reasoned that the Constitution treats some false statements as intrinsically valuable and worthy of robust First Amendment protection. Before reaching its conclusion, the plurality had to confront the Court's language in prior opinions supporting the contrary view that false claims have no inherent worth. According to the plurality, the opinions that had described false speech as valueless involved “defamation, fraud, or some other legally cognizable harm … such as an invasion of privacy or the costs of vexatious litigation.” Those opinions accordingly did not offer any insight into the treatment of false speech in the case at hand.Footnote ⁷

It made no difference to the Alvarez plurality that the Court's precedents contained broad language indicating that false statements lack constitutional worth. Only the Court's applications of its rule to causes of action such as defamation and fraud warranted deference going forward. By drawing a rigid line between fact-intensive rulings and nonbinding judicial exposition, the Alvarez plurality highlighted the importance of separating holdings from dicta.

To similar effect is United States v. Stevens (2010). That case dealt with a federal statute aimed at depictions of animal cruelty. In defending the statute's constitutionality, the government pressed an argument grounded in cost–benefit analysis: Because depictions of animal cruelty have meager social value but impose significant social harm, they should be treated as a categorical exception to First Amendment protection. The government's argument drew on previous cases in which the Supreme Court had described this type of cost–benefit analysis as relevant to constitutional protection. But Stevens dismissed the prior endorsements of cost–benefit analysis as merely “descriptive.” According to the majority, the Court's prior statements linking First Amendment coverage to cost–benefit analysis were peripheral. The statements did not “set forth a test that may be applied as a general matter.”Footnote ⁸ Stevens explained that historical practice, not cost–benefit analysis, determines whether speech falls into a categorical exception to protection. Though the historical approach might conflict with some of the Court's language, the majority found the approach consistent with the rule embodied in the Court's prior decisions.

The Court evinced a comparable view of precedential scope in Planned Parenthood v. Casey (1992), which continues to represent the justices' most controversial engagement with precedent. When the Court addressed the constitutional implications of abortion in Roe v. Wade (1973), it ventured beyond the facts at hand to articulate a framework for assessing abortion regulations based on the trimester of pregnancy.Footnote ⁹ That framework was not essential to Roe's disposition, nor was it an application of law to specific, concrete facts. Rather, it served as a general set of instructions for analyzing and resolving future cases. In Casey, the Court reaffirmed Roe's protection of a woman's constitutional right “to terminate her pregnancy in its early stages.”Footnote ¹⁰ At the same time, a plurality of justices rejected Roe's trimester framework, which they described as unnecessary and therefore expendable.Footnote ¹¹ The plurality thus distinguished central holdings from peripheral statements – even statements manifestly intended to guide the resolution of disputes going forward.

Cases like Alvarez, Stevens, and Casey provide some basis for characterizing the Supreme Court as adopting a relatively narrow approach to precedents' scope of applicability, one that insists on preserving the line between holdings and dicta. On this view, no deference is due to unnecessary statements, regardless of whether they were meant as guidance for future courts. Those sorts of statements may or may not be convincing on the merits, but in no event do they warrant deference beyond their persuasive force. Such deference is reserved for the targeted application of law to actual, concrete facts.

Beyond Holdings and Dicta

Given these illustrations of the divide between holding and dicta, one might infer that federal courts customarily define the scope of precedent in narrow fashion. Yet judicial opinions, including those of the Supreme Court, are commonly filled with justifications, reflections, and prescriptions for the future. It seems clear that this is often intentional rather than incidental. As Justice Stevens once observed, “[v]irtually every one of the Court's opinions announcing a new application of a constitutional principle contains some explanatory language that is intended to provide guidance to lawyers and judges in future cases.”Footnote ¹² As we shall see, federal judges and justices frequently respond by giving binding effect to propositions that sweep far beyond a decision's narrow holding. To illustrate, I will address four features of Supreme Court opinions – hypotheticals and asides, doctrinal frameworks, codifying statements, and supporting rationales – that do not fit neatly into the conventional definition of a decision's holding but that nevertheless play a significant role in the trajectory of constitutional law.

Hypotheticals and Asides. Judicial musings about situations not currently presented for review are dicta in the most familiar sense. Such statements do not resolve, or even attempt to resolve, a pending dispute. Instead, they are suggestions about how the law should or will apply in future cases. This type of dicta-as-hypothetical has a close cousin in the form of judicial asides. Asides may be related to the case at hand, but they are attenuated from, and unnecessary to, the court's ruling.

Yet the Supreme Court sometimes invokes its prior statements even as it acknowledges them as unnecessary dicta. In Rivera v. Illinois (2009), for example, the Court noted it had previously disavowed language from a prior opinion, “albeit in dicta.”Footnote ¹³ Chief Justice Roberts offered similar sentiments in a 2010 concurrence that treated certain statements as worth citing notwithstanding their status as dicta.Footnote ¹⁴ A comparable example is Kappos v. Hyatt (2012), in which the Court considered a party's ability to introduce new evidence when contesting the denial of a patent. The Court had previously described subsequent challenges as independent of patent applications, meaning new evidence could be introduced. It made those statements in an 1884 case called Butterworth v. United States. Looking back more than a century later, the Kappos Court gave deference to Butterworth's statements about subsequent challenges even though those statements were “not strictly necessary to Butterworth's holding.” The Court explained that while the pertinent statements in Butterworth were technically dicta, they were “not the kind of ill-considered dicta that we are inclined to ignore.” On the contrary, the Butterworth discussion reflected a “careful[] examin[ation]” of the statutory context and relevant decisions of the lower courts. The Court had also “reiterated Butterworth's well-reasoned interpretation … in three later cases.” The dicta were therefore entitled to some deference going forward.Footnote ¹⁵

It is hard to tell exactly how much deference the Butterworth dicta received, because the Kappos Court also found them convincing on the merits. The key point is the recognition of distinctions among different types of dicta. By separating “ill-considered dicta” from dicta that ought not be “ignor[ed],” Kappos makes a subtle but significant revision to the divide between holdings and dicta. The case implies that even dicta can be worthy of deference under the right circumstances.

For one final example, consider Parents Involved in Community Schools v. Seattle School District No. 1 (2007), a case dealing with the racial demographics of school districts.Footnote ¹⁶ At issue was the districts' authority to consider students' race in deciding which school they would attend. The Supreme Court concluded the districts' practices violated the Equal Protection Clause of the Fourteenth Amendment.

Justice Breyer dissented on behalf of himself and three others. Among his points of disagreement with the lead opinion was its treatment of Swann v. Charlotte-Mecklenburg Board of Education (1971). In Swann, the Court described the “broad discretionary powers of school authorities” as encompassing the ability to promote racial diversity within schools in order to “prepare students to live in a pluralistic society.”Footnote ¹⁷ The lead opinion in Parents Involved characterized the relevant portion of Swann as inapposite, outmoded, and nonbinding dicta. Justice Breyer took issue with that depiction in his dissent. Though he acknowledged that the relevant statement was not part of Swann's holding, he countered that the Court had “set forth its view prominently in an important opinion joined by all nine justices, knowing that it would be read and followed throughout the Nation.” Swann's statement had also come to enjoy “wide acceptance in the legal culture.” And “it reflected a consensus that had already emerged among state and lower federal courts.” In light of these facts, Justice Breyer found the plurality's “rigid distinctions between holdings and dicta” to be misguided. He concluded that if the plurality wanted to revisit Swann, it should have acknowledged an obligation to “explain to the courts and to the Nation why it would abandon guidance set forth many years before.”Footnote ¹⁸

Justice Breyer's treatment of Swann cannot be explained by the traditional distinction between holdings and dicta. While he recognized the pertinent portion of Swann as dicta, he nevertheless contended that the statement warranted some degree of deference above and beyond its persuasiveness on the merits. This conclusion owed in part to what Justice Breyer perceived to be the intention of the Swann Court, and in part to the role Swann's statements had come to play over time in the wider “legal culture.” Dicta or not, the statements were “authoritative legal guidance.”Footnote ¹⁹

Justice Breyer's assumptions run parallel with those of the majority in Kappos, the case involving lawsuits following patent denials. Both opinions imply that in certain situations, judicial statements warrant deference despite having been unnecessary to the decision that contained them. From the outset, then, we can see some complexity in the traditional divide between binding holdings and dispensable dicta.

Doctrinal Frameworks. The Supreme Court regularly builds frameworks to guide the resolution of future disputes. By their nature, these frameworks sweep beyond the facts at hand to address situations not currently before the Court. Yet while the justices occasionally refuse to accept the validity of doctrinal frameworks with which they disagree,Footnote ²⁰ in many cases the frameworks are taken as given, with the real differences concerning their application to particular sets of facts. The Court's assessments of racial classifications assume that the proper starting point is whether the government has narrowly tailored its approach to serve a compelling interest.Footnote ²¹ The Court's applications of the Ex Post Facto Clause give canonical force to a multi-part test dating back to 1798.Footnote ²² The Court's forays into administrative law are frequently governed by the two-step protocol set forth in the famous case of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.Footnote ²³ In situations like these, doctrinal frameworks appear to exert binding force.

For a further illustration, consider the Supreme Court's treatment of the right to bear arms. In District of Columbia v. Heller (2008), the Court interpreted the Second Amendment as protecting an individual's right to own a gun, at least insofar as the Amendment prohibits bans on firearm possession in one's home.Footnote ²⁴ The Court accordingly struck down a District of Columbia law. Among the questions raised by the Court's decision was whether it would apply to state and local laws in the same way it applies to federal laws of the sort that govern the District of Columbia. The question was made more complicated by the fact that the Second Amendment is understood as applying only to the federal government. If state and local governments are limited in their regulatory power over firearms, those limits must come from a different source.

One possible source is the Fourteenth Amendment's Privileges or Immunities Clause. The Clause instructs that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In the Slaughter-House Cases (1873), the Supreme Court described those privileges and immunities as extending only to “rights ‘which owe their existence to the Federal government, its National character, or its laws.’”Footnote ²⁵ Such rights touch upon issues like traveling to “the seat of government to assert” a claim upon it, but they do not sweep in the restrictions on governmental power set forth in the Bill of Rights.Footnote ²⁶

Over the years, many commentators have criticized the Court as misconstruing the Privileges or Immunities Clause. Properly understood, the critics claim, the Clause incorporates the protections of the Bill of Rights against state and local governments. But whether it is right or wrong, the prevailing interpretation of the Privileges or Immunities Clause has not left people unprotected against state and local action. Rather, they receive extensive protection via the Fourteenth Amendment's Due Process Clause, which prevents states from depriving “any person of life, liberty, or property, without due process of law.”

This approach has been controversial in its own right. There are some who believe the Due Process Clause deals only with procedure, not substance. On this reading, the Clause does not protect any substantive rights, including those encompassed within the Bill of Rights.Footnote ²⁷ Some critics of the Court's approach also worry that by recognizing a substantive dimension to the Due Process Clause, the justices open up the possibility of creating new rights that have little or no grounding in the Constitution's text or history.Footnote ²⁸

The application of the Bill of Rights to state and local action moved to the foreground in McDonald v. City of Chicago (2010). In McDonald, the Court considered the validity of local laws against handguns. The challengers in McDonald wanted the laws invalidated, but they also asked the Court to deviate from its customary approach. Rather than emphasizing the Due Process Clause, the challengers asked the Court to recognize the right to bear arms as protected by the Privileges or Immunities Clause. Such a revision, they contended, would be true to the proper understanding of the Fourteenth Amendment.

Ultimately, the Court ruled that states and localities must respect citizens' rights to bear arms. Yet it declined the invitation to invoke the Privileges or Immunities Clause. Instead, a plurality stuck with the Court's tried-and-true reliance on the Due Process Clause. The plurality acknowledged the extensive criticism the Court's approach had received from legal scholars. Even so, it “decline[d] to disturb the Slaughter-House holding.”Footnote ²⁹

The McDonald approach is interesting on several fronts, but the most notable implication for present purposes involves the issue of precedential scope. The plurality depicted the Court's prior interpretations of the Fourteenth Amendment as settled law entitled to deference. It offered no conclusions about whether incorporating the Bill of Rights via the Due Process Clause reflects the best reading of the Constitution. Instead, the plurality indicated that whether or not the Court's prior interpretations were correct, they warranted respect given their prevalence “[f]or many decades.”Footnote ³⁰ The plurality treated the preexisting standard for incorporation as entitled to deference – which is to say, as falling within the relevant precedents’ scope of binding authority.

To one who is immersed in the classical distinction between binding holdings and dispensable dicta, this approach might be surprising. The Court's position on incorporation emerged through cases involving issues like police searches and the freedom of speech. Those cases had nothing to do with gun rights. Nevertheless, the McDonald plurality accepted the Court's prior decisions as applying in full measure to the right to bear arms. In effect, the plurality recognized that cases involving certain constitutional rights can serve as binding precedents in future cases involving entirely different rights. This type of doctrinal transcendence is difficult to square with a vision of precedential scope that is defined by the targeted application of narrow rules to concrete facts.

The Court's treatment of abortion laws provides a similar illustration in a different context. As noted above, when the Court decided Roe v. Wade, it ventured beyond the dispute at hand to articulate a framework for assessing regulations based on the trimester of pregnancy. When the Court returned to Roe in Planned Parenthood v. Casey, it preserved what it described as Roe's core holding relating to the constitutional status of abortion rights and the government's countervailing interests. At the same time, three of the five justices who voted to reaffirm a constitutional right to abortion went on to reject Roe's trimester framework. Instead of focusing on the trimester of pregnancy, they described the proper question as whether “state regulation imposes an undue burden on a woman's” right to an abortion.Footnote ³¹ The justices also explained that “[r]egulations which do no more than create a structural mechanism” for “express[ing] profound respect for the life of the unborn are permitted,” so long as “they are not a substantial obstacle to the woman's exercise of the right to choose.”Footnote ³²

Again, our immediate interest is what the Casey approach reveals about the scope of precedent. On the one hand, the plurality's withholding of deference from Roe's trimester framework lends support to the distinction between essential holdings and peripheral dicta. On the other hand, the plurality saw fit to announce its own wide-ranging, forward-looking test based on whether a regulation creates an undue burden on abortion rights. And it made clear the new standard was one it intended “to adhere to” going forward.Footnote ³³

Perhaps the Casey plurality merely wanted to provide some guidance about its (nonbinding) aspirations for the path of the law. But it seems more likely the plurality thought it was articulating a legal standard that would be controlling in future cases. In the lower courts, such deference would be absolute. As for the Supreme Court itself, it would always retain the power to reconsider its approach, just as the Casey plurality had departed from Roe's trimester framework. Even so, the undue-burden standard would be entitled to some degree of deference, and it would furnish the appropriate framework of review unless and until the Court recognized a special justification for overruling it. What started out looking like a restrictive approach to precedential scope – one that reserved deference for a decision's core holding as opposed to its peripheral instructions – gave way to a more capacious view, which treats wide-ranging doctrinal frameworks as entitled to respect.

Another species of doctrinal framework has been called a “codifying decision[].”Footnote ³⁴ Codifying decisions set forth legal requirements in detailed and elaborate terms. A prominent example is Miranda, which considered “procedural safeguards” for custodial interrogations of suspected criminals. The Miranda Court went far beyond determining whether any constitutional rights had been violated in the case before it. It described the warnings that would be required in future cases, including the right to remain silent, to the presence of an attorney, and so forth.Footnote ³⁵

A court's willingness to issue codifying decisions implies a broad understanding of the scope of precedent. Notwithstanding the Supreme Court's determined effort at elaboration, the Miranda warnings would carry limited force in a system that withholds deference from peripheral and nonessential statements. As Judge Frank Easterbrook has noted, because the suspect in Miranda “had not been given any warning,” there was no need for the Supreme Court to set forth a defined set of four warnings.Footnote ³⁶ Nevertheless, the Court did not limit itself to what was necessary. And subsequent courts followed its lead, treating the Miranda warnings as settled law. Indeed, when the Supreme Court was asked to overrule Miranda in 2000, it explained that “[w]hether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.”Footnote ³⁷

Like doctrinal frameworks, codifying decisions float free of any particular dispute. Their aim is to guide judicial actions when new facts emerge and new disputes arise. Nevertheless, while they reflect broad statements of guiding principles, codifying statements can exert binding force as a matter of federal practice.

Supporting Rationales. The reasons offered to support a judicial ruling are distinct from the ruling itself. Some definitions of precedential scope are broad enough to give binding effect to supporting reasons.Footnote ³⁸ For example, Judge Pierre Leval has defined the concept of dicta as encompassing propositions that do not affect “the court's judgment and the reasoning which supports it.”Footnote ³⁹ On other accounts, however, decisional rationales should not receive deference when they are exported to new factual contexts. This debate has been with us for decades. In 1928, Herman Oliphant lamented that “we are well on our way toward a shift from following decisions to following so-called principles, from stare decisis to … stare dictis.”Footnote ⁴⁰ Some sixty years later, Justice Kennedy explained that deference extends “not only to the holdings of our prior cases, but also to their explications of the governing rules of law.”Footnote ⁴¹

More recently, the Supreme Court has stated that a “well-established rationale upon which the Court based the results of its earlier decisions” is entitled to deference in future cases.Footnote ⁴² But the Court has not been entirely consistent in embracing this position. In Stevens, the Court drew a sharp distinction between rules of decision and “descriptions” of those rules. The latter, descriptive components might furnish the underlying rationales that drove prior decisions – for example, by explaining that a category of speech has been denied constitutional protection based on an evaluation of its costs and benefits. Even so, the Court rejected the claim that descriptions are entitled to deference.Footnote ⁴³ A plurality took a similar position in Alvarez, which raised questions about the constitutional value of false speech. Though the Court had previously reasoned that false speech is unworthy of constitutional protection, the Alvarez plurality declined to defer to that rationale, focusing instead on the particular examples of false speech that had arisen in its prior cases.Footnote ⁴⁴

We are thus left in a zone of uncertainty. Sometimes the Supreme Court insists on a firm line between rules and rationales in determining the forward-looking effect of precedent. In other cases, the lesson seems to be that decisional rationales are entitled to deference even if future courts disagree with them.

One way to resolve this uncertainty is to recognize the difference between a rationale that is expressed within a particular opinion and a rationale that is reconstructed by a court looking back over its prior decisions. When the Supreme Court considers its cases within a given field, it sometimes perceives an overarching rule that links them together. The Court might defer to such a rule even if it would not be inclined to defer to the statements of rationale contained in the decisions themselves. This understanding arguably explains cases like Stevens and Alvarez, both of which deduced a new rationale by focusing on the facts of the relevant precedents rather than the articulated reasons. Those cases support the view that in defining a precedent's future application, its express statements of reasoning are less important – sometimes, at least – than underlying rationales reconstructed by later courts.

Precedent in the Lower Federal Courts

Judges occasionally emphasize the need for interpreting precedents, even Supreme Court precedents, in relatively narrow terms. Judge Danny Boggs, for instance, has noted that “the holding/dicta distinction demands that we consider binding only that which was necessary to resolve the question before the [Supreme] Court.”Footnote ⁴⁵ Likewise, Judge Pierre Leval has explained that Supreme Court dicta are “not law.”Footnote ⁴⁶ The implication is not merely that judges should feel free to depart from dicta. The idea is that a judge who treats dicta as binding fails to discharge her duty. Judge Ruggero Aldisert took a similar position in contending that “[t]he common-law tradition requires starting with a narrow holding and, then … either applying it or not applying it to subsequent facts.”Footnote ⁴⁷

Others take a different approach to the scope of Supreme Court precedent. As Frederick Schauer notes, it often seems as though in “interpretive arenas below the Supreme Court, one good quote is worth a hundred clever analyses of the holding.”Footnote ⁴⁸ And, indeed, many lower courts describe Supreme Court statements as entitled to deference regardless of whether those statements were made in dicta. The strength of deference varies from court to court. There are opinions that describe Supreme Court dicta as akin to Supreme Court holdings, and opinions contemplating an intermediate approach whereby dicta carry some force, though not as much as holdings. The common thread is that Supreme Court dicta warrant respect above and beyond their persuasiveness on the merits.Footnote ⁴⁹

Here again we have a particular vision of the scope of precedent, one that eschews strict adherence to the line between holdings and dicta. Rather than being denied any weight beyond their persuasiveness, Supreme Court dicta receive substantial, and sometimes controlling, deference in many lower courts. A recent empirical study by David Klein and Neal Devins underscores the point by confirming the “frequent decisions” among lower courts “to abide by statements from higher courts even though they are recognized as dicta.”Footnote ⁵⁰ The contrast between holding and dicta makes far less difference if judges are in the habit of according strong deference to Supreme Court pronouncements of any type.Footnote ⁵¹ In practical terms, the lesson is that while the holding/dicta distinction is integral to understanding the scope of precedent in modern American law, focusing on it excessively could lead to a distorted depiction of how precedent really works.

Scope, Methodology, and Normative Commitments

Sometimes the scope of precedent is defined in a way that seems roughly aligned with the holding/dicta divide. In other cases, prior decisions are construed capaciously and inclusively, with deference attaching to elements beyond the narrow application of law to fact. At present, there is no user's manual to tell us which conception of precedential scope will prevail in which cases. Instead, the scope of precedent ebbs and flows in unpredictable ways.

So how should the scope of precedent be defined? Should the judiciary's overtures toward a broad conception of scope be cheered as facilitating guidance and stability? Or should they be lamented as an invitation to missteps and overreaching?

These are important questions, and they do not admit of a single answer. Chapter 3 showed why it is problematic to talk about the strength of precedent in the abstract. The relevant costs of retaining a flawed decision, as well as the relevant benefits of implementing a correct decision, look different depending on one's interpretive philosophy. The same is true of precedential scope. Determining the “best” way to construe precedents depends on deeper methodological and normative choices. Some theories imply that precedents should be defined narrowly. Others imply a broader conception of precedential scope. A full analysis requires attention to the role played by interpretive methodology and normative commitments.

To illustrate, let us consider several interpretive philosophies introduced in Chapter 3's discussion of precedential strength, along with a few additional examples that shed further light on the connection between methodology, normative judgments, and the scope of a prior decision's binding authority.

Common Law Constitutionalism. Notwithstanding its insistence that the meaning of the Constitution can change over time, common law constitutionalism pays considerable attention to the past. It urges the evolution of constitutional law toward just and sound results, but it recognizes judicial precedent as a source of common ground and accumulated wisdom.

Given these objectives and premises, common law constitutionalism is most compatible with a relatively broad vision of precedential scope. The common law approach relies on precedent to temper the pace of change and channel judicial discretion.Footnote ⁵² Defining the scope of precedents strictly – which is to say, limiting a precedent's binding effect to its narrow core – would impair those functions. When a precedent's effect is limited to its targeted application of law to fact, today's judges will have extensive discretion to innovate in light of their own conclusions. For precedents to exert meaningful constraint on today's courts, they must be defined in a way that is fairly difficult to get around. This requirement suggests a broad definition of precedential scope that entails deference not only to narrow holdings, but also to elements such as doctrinal frameworks and underlying rationales. If it is too easy for judges to circumvent disfavored precedents by confining them to their facts, every day is a new day. The importance of construing precedents broadly is amplified because unlike interpretive methodologies such as originalism, common law constitutionalism makes no claim of being bound by the original meaning of the Constitution's text. Prior decisions furnish constraint by giving judges a series of reference points beyond their own intuitions about the appropriate path of constitutional law.

Common law constitutionalism also implies a broad scope of precedent through its depiction of case law as a source of collective knowledge. The theory reflects a belief in the wisdom of the ages and the limitations of individual decision-makers. It is true that common law constitutionalism depicts some values as so crucial that they must be protected, even if it means renouncing what has gone before. But generally speaking, the preference is for distilling lessons from the past, understanding what has (and has not) worked in practice, and acknowledging one's own potential for error while moving ahead gradually and deliberately.

This focus on individual limitations and collective wisdom is at odds with a strict conception of precedential scope. The wisdom of earlier judges does not manifest itself solely in narrow applications of law to fact. Rules, rationales, and doctrinal frameworks also embody the experiences and perspectives of past generations. A readiness to dismiss wide swaths of case law as hypothetical or unnecessary fits uneasily with an approach that places so much emphasis on respect for the past. The more natural practice for the common law constitutionalist is to pay close attention to the analysis contained in prior opinions, regardless of whether that analysis is categorized as holding or dicta. This does not mean deference must be given to every utterance in a prior opinion, no matter how attenuated or ill-advised. But it does mean there should be an inclination toward treating rules, frameworks, and explanations with presumptive deference even if they might fit the technical definition of dicta on some accounts.

Here again it is essential to bear in mind that deference to precedent is merely presumptive. Common law constitutionalism acknowledges that precedents may, and sometimes should, be overruled. For example, precedents ought not survive indefinitely when they impair the sound or just implementation of constitutional principles.Footnote ⁵³ But that issue is one of precedential strength, not scope. Regardless of how powerfully a precedent is deemed to constrain, common law constitutionalism sits most comfortably alongside a capacious view of precedential scope that contemplates at least some degree of deference to a wide array of judicial propositions.

As I suggested above, adopting a broad definition of precedential scope does not entail rejecting all other safeguards against judicial overreaching. For a common law constitutionalist who supports the incremental evolution of the law, defining precedents broadly raises concerns about encouraging expansive decisions in the first instance. The worry is that if judges know precedents will be construed broadly by future courts, they will write wide-ranging opinions that settle too much, too fast. This concern underscores why rules of precedent cannot be analyzed in isolation. Common law constitutionalism works best when judges act with humility and restraint, both in interpreting old precedents and in creating new ones. Stare decisis is an important component of the judicial process, but it is far from the only one.

Originalism. While common law constitutionalism is best understood as aligned with a broad conception of precedential scope, other interpretive philosophies imply a different approach. Return to the example of originalism. An abiding focus on the Constitution's original meaning might seem to put originalism at odds with deference to precedent, at least when prior decisions ignore or misunderstand that meaning. Some originalists draw on this tension in criticizing the application of stare decisis in constitutional cases. For them, the scope of precedent makes little difference in the context of the Supreme Court's treatment of its own decisions: Regardless of whether a judicial proposition is described as holding or dicta, it should generally carry no weight beyond its persuasive force.

For other originalists, deference to precedent can be legitimate and appropriate. This is true even when the decision being reconsidered is incompatible with the original meaning of the Constitution as properly understood. For originalists who take this view of the legitimacy of stare decisis, there nevertheless may be appeal in a narrow definition of precedential scope. By construing precedents narrowly, originalists can leave some room for stare decisis while ensuring that reliance on judicial gloss does not go too far. Not every version of originalism would pursue this goal in the same way. Instead, we would expect to see differences in approach based on the versions' respective normative premises. I have explained how the underlying justifications that lead a judge or scholar to embrace originalism – justifications such as popular sovereignty and consequentialism – can shape the strength of deference to which flawed precedents are entitled. Those justifications can have a similar bearing on conceptions of precedential scope.

Among those who have argued for the compatibility of originalism and judicial precedent are John McGinnis and Michael Rappaport, whose work I introduced in Chapter 2. In their view, a central reason for abiding by the Constitution's original meaning is the belief that because the Constitution was the product of supermajority agreement, it will tend to yield desirable results. The consequentialist position permits the displacement of original meaning with judicial precedent in certain situations. For example, courts may uphold mistaken precedents that have achieved widespread acceptance. In those instances, a commitment to the wisdom of supermajorities supports deferring to judicial decisions that, while inconsistent with the Constitution's original meaning, enjoy the degree of support needed for a constitutional amendment.

Through its attention to supermajority acceptance, consequentialist originalism carries ramifications not only for the strength of past decisions as precedents, but also for their scope of applicability. Rules such as “racial segregation in public schools is not allowed” and “paper money is lawful” enjoy widespread acceptance in American society. Those rules might well command the sort of supermajority support required to amend the Constitution. The implication for consequentialist originalism is that such rules may be retained even if they do not reflect the Constitution's original meaning.

Supermajority support will rarely reach other elements of judicial decisions, such as doctrinal frameworks. It is hard to imagine millions of citizens rallying around the technical argument that restrictions on independent political expenditures should be reviewed using a standard of strict scrutiny, or that categorical exceptions to First Amendment protection may emerge through historical practice but not through cost–benefit analysis. In theory, consequentialist originalism could permit deference to a doctrinal framework that swept far beyond the facts of the case that announced it. More likely, however, are scenarios in which particular applications of constitutional rules enjoy supermajority support – and thus raise the possibility of retention even if they depart from the Constitution's original meaning – while aspects such as doctrinal frameworks find no such favor.

The takeaway would seem to be that consequentialist originalism implies a narrow definition of precedential scope that focuses on specific rules rather than general frameworks. And, indeed, that will often be true. But not always. Consequentialist originalism allows the retention of flawed precedents whose overruling would create extraordinary costs.Footnote ⁵⁴ For example, if the Supreme Court were to reverse course and declare paper money unconstitutional, substantial costs would likely follow. We can imagine situations where departing from established doctrinal frameworks might likewise threaten the imposition of extraordinary costs. Take the framework for incorporating the Bill of Rights against the states, which asks whether a given right “is fundamental to our scheme of ordered liberty.”Footnote ⁵⁵ The Court has applied that framework in numerous cases dealing with an array of constitutional rights. The precise doctrinal test for incorporation presumably does not command anything approaching supermajority support in American society. Yet if the Court were to jettison it, there would be significant transition costs. The status of numerous constitutional rights could be cast into doubt, and judges and lawyers would need to work out a new approach to incorporation. For the consequentialist originalist, these disruptions suggest the incorporation framework might warrant preservation even if it conflicts with the Constitution's original meaning.

The incorporation example demonstrates that while consequentialist originalism will often imply a relatively narrow conception of precedential scope, in some circumstances it allows for a broader definition. In resolving issues of precedential scope under the consequentialist approach, the traditional line between holding and dicta is less important than the baseline concern with welfare maximization through supermajority wisdom. As with the example of common law constitutionalism, consequentialist originalism's underlying premises provide the basis for its treatment of precedent.

The same is true of other versions of originalism. Consider the argument that the primary reason for endorsing originalism is its success at requiring judges to decide cases based on predefined, external legal rules. The rationale is that even if other philosophies, such as pragmatism or common law constitutionalism, are plausible modes of interpretation, originalism excels at promoting the rule of law. Accepting this rule-of-law defense of originalism does not require applying the Constitution's original meaning in every case. A prominent illustration comes from the writings of Justice Scalia, who described deference to precedent as a “pragmatic exception” to originalism, grounded in the desire to maintain stability.Footnote ⁵⁶ Justice Scalia's depiction of precedent can be reframed to emphasize an underlying focus on the rule of law: While fidelity to precedent may sometimes create costs for the rule of law by supplanting democratically enacted mandates with (mistaken) judicial gloss, deference to precedent can also advance the rule of law by enhancing continuity and avoiding disruption.

Rule of law originalism suggests a fluctuating approach to precedential scope. Where the Constitution's original meaning is clear, beliefs about the connection between original meaning and the rule of law will generally counsel the narrow interpretation of flawed precedents. Hence Justice Scalia's resolution in certain contexts to abide by the Court's prior decisions, but to refrain from extending their rationale to new contexts.Footnote ⁵⁷ Yet there is an exception when jettisoning a rationale or decisional framework would exact a significant toll on stability and reliance expectations. In those cases, the rule of law may be best served by construing precedents broadly and standing by them notwithstanding their flaws.

Rule of law originalism is also consistent with a relatively broad conception of precedential scope when the Constitution's original meaning is uncertain. In the face of uncertainty, precedents step in to lend predictability and precision to the law. By insisting that such precedents receive deference for their rules, rationales, and frameworks, an originalist can reinforce the notion of constitutional law as durable, impersonal, and constraining. When it comes to elevating external determinants of legal meaning over subjective intuitions, a judge who resolves disputes based on her best reading of precedent resembles a judge who resolves disputes based on her best interpretation of the Constitution's original meaning. Precedent delivers some of the same benefits as scrupulous fidelity to text and history.

Pragmatism. For a final illustration of the impact of interpretive methodology and normative commitments on the scope of precedent, consider the case of constitutional pragmatism. I have emphasized that labels like originalism and living constitutionalism, while helpful in drawing general distinctions, must not be allowed to obscure the nuance that exists within those categories. The dangers of misleading labels are even greater with respect to pragmatism, which is a term judges, lawyers, and scholars use in a host of different ways. For the sake of simplicity, I will focus on a particular version of pragmatism described by Justice Breyer. He depicts the pragmatic judge as resolving constitutional disputes with an eye toward the purposes of the relevant provision and the practical consequences of various interpretations. The goal is “an interpretation that helps the textual provision work well now to achieve its basic … objectives.” At the same time, pragmatism places a “thumb on the scale in the direction of stability” to make the law more durable and predictable.Footnote ⁵⁸ Sometimes the best option for the pragmatist is to stand by things decided, even if it would have been better had those things been handled differently in the first instance.

The premises underlying pragmatism's methodology of interpretation should also inform its view of precedential scope. People and organizations make decisions based not only on what the Supreme Court decides, but also on what it says along the way. Pragmatists tend to be solicitous of reliance interests, whether reliance manifests itself in the form of public expectations or private decision-making (or both). If it would be beneficial to protect reliance expectations, those expectations should not be dismissed as inapposite merely because they attached to a judicial statement technically defined as dicta. Real-world effects, not abstract and rigid legal categories, are the core of constitutional pragmatism.

It follows that the pragmatic judge should be willing to define precedents broadly when factors such as stability and reliance are on the line. This type of thinking might well explain Justice Breyer's approach in Parents Involved, which I discussed above. In that case, Justice Breyer described a passage from one of the Court's previous decisions as warranting deference even as he acknowledged the passage as dicta in the formal sense. Whether classified as holding or dicta, the passage “provides, and has widely been thought to provide, authoritative legal guidance.”Footnote ⁵⁹ For a pragmatist like Justice Breyer, “rigid distinctions between holdings and dicta” cannot define a precedent's scope of impact in future cases. Pragmatism reflects a functional approach to the law, so it should come as little surprise that the theory would not be satisfied with trying to conceptualize a precedent's scope of applicability as “an exercise in mathematical logic.”Footnote ⁶⁰

At the same time, pragmatism is consistent with the view that some judicial statements do not warrant any deference going forward. Again, the inquiry must be a practical one. If a peripheral statement in a prior Supreme Court opinion is cursory and unexplained, anyone – including constitutional pragmatists – might worry that it does not reflect the justices' serious consideration. Such statements carry a heightened risk of error. Much the same is true if the Court “hedged” its prior statement by couching it in doubts and disclaimers.Footnote ⁶¹ A qualified formulation makes it more likely that the Court itself did not fully commit to the implications of its statement. Even for the pragmatist, these types of judicial pronouncements will fall outside a precedent's scope of applicability. This is not because of the line between holding and dicta, but rather because of the pragmatist's attention to case-specific analysis and practical effects.

Other Normative Commitments and Constitutional Understandings. The relationship between precedential scope and interpretive philosophy is a universal phenomenon. It extends well beyond the examples discussed above. Every theory of constitutional interpretation has ramifications for the way in which precedents are defined.

The same is true of normative commitments and constitutional understandings that are not presented within the context of full-dress theories of interpretation such as common law constitutionalism or consequentialist originalism. One's devotion to certain values, and one's reading of various provisions of the Constitution, can still affect how the scope of precedent is defined. Michael Dorf, for example, defends a relatively broad view of precedent based in part on rule-of-law considerations. He argues that “[w]hen a court discards the reasoning of a prior opinion as merely dictum,” it threatens to “relegate[] the prior decision to the position of an unjustifiable, arbitrary exercise of judicial power.”Footnote ⁶² Lawrence Solum also highlights the link between precedent and the rule of law, though he would limit the forward-looking effects of individual decisions “to their legally salient facts.” Only if a proposition emerges through a string of cases can it yield “a rule that approximates legislation.”Footnote ⁶³ Professor Solum's argument suggests a more restrictive definition of precedential scope that curbs judges' ability to articulate broad mandates in the course of a single case.

Of course, value judgments become relevant only if one believes the Constitution permits discretion in the definition of precedential scope. Not everyone does. At the center of the debate is Article III, which serves as the backdrop for the federal judiciary. Article III describes the “judicial Power” as “extend[ing]” to various classes of “Cases” and “Controversies.” By connecting the judicial power with the resolution of discrete disputes, Article III arguably implies that judicial hypothesizing should not be entitled to any weight beyond its persuasiveness. It is possible to derive a related claim from the Constitution's more general separation of powers. When precedents are construed too broadly, the argument goes, judges may articulate wide-ranging rules and frameworks that are the rightful province of the legislature. On the other hand, Article III's distinction between inferior courts and the Supreme Court might suggest that oversight and uniformity are essential to the judicial system and the constitutional order. The implication would be that lower courts are acting lawfully (and sensibly) when they construe Supreme Court precedents broadly.

The point of briefly introducing these arguments is simply to illustrate some ways in which constitutional assumptions and understandings can inform debates over the scope of a precedent's applicability. On some views, Article III restricts the binding effect of precedents to their essential holdings, as opposed to their extraneous dicta. But even then, it is not the line between holding and dicta that is doing the work. Rather, the driving force is one's interpretation of Article III. Likewise, one might endorse the distinction between holding and dicta based on beliefs about the dangers of judicial overreaching or the heightened propensity of courts to make mistakes when they venture beyond the facts at hand. While the definition of precedential scope under such an approach might run parallel to the line between holdings and dicta as traditionally described, it would be driven by value choices and assumptions about judicial decision-making. This makes perfect sense. Speaking in terms of holding and dicta might be a useful heuristic, but the focus should remain on the underlying premises and commitments that lead a judge to conclude that certain judicial propositions warrant deference while others do not.Footnote ⁶⁴

Sometimes it is easy to figure out what a precedent stands for. When it is not, the scope of precedent depends on a host of questions about the courts, the Constitution, and the nature of judicial opinions as sources of law. To invoke the distinction between holding and dicta is not to resolve these questions, but to raise them.