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Tuesday, September 27, 2005

When does constitutional dicta become law?

In its 2005 decision in Lingle v. Chevron, the Supreme Court authoritatively  discussed and appeared to resolve an issue that was neither essential nor particularly relevant to the issue on which it granted cert.  (As briefly and simply as possible, the issue in Lingle was the relationship between substantive due process and regulatory takings; the issue I'm interested in that the Court appeared to resolve is the precise reach of the heightened scrutiny for regulatory bargains developed by the Court in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). The relevant parts of the decision appear in Part III of Justice O'Connor's Lingle majority and are not discussed in Justice Kennedy's brief concurrence.) 

The Court had expressed a similar conclusion, also in dicta, in a few recent decisions, but it had never come out as boldly and prominently with its conclusion.  What was especially surprising was the fact that the Lingle decision was 9-0, and that at least three justices (including Justice O'Connor, who wrote Lingle) had previously dissented from various prior cert. denials that had concerned petitions raising this very issue. In those dissents, the justices explicitly stated a proposition counter to the one they signed on to, as dicta, in Lingle.  Furthermore, ten years earlier the Court had vacated a judgment of the California Court of Appeal that was consistent with the Lingle dicta and remanded the case back to the state court, thereby setting in motion a chain of decisions in lower federal and state courts that is inconsistent with what the Court has now declared, by dicta, to be the law of the land.  Now obviously, the Court and individual justices are free to change their minds.  But in dicta?  Without a case before the Court that squarely raises the issue?

So my request, dear prawfsblawg readers and especially commenters, is for other, similar instances of this phenomenon of dicta, repeated over time and in an increasingly authoritative manner, potentially hardening into law -- a phenomenon that appears to me, in my relative jurisprudential ignorance, to be fairly odd.  What have the implications been?  For example, may those state courts that had earlier followed what they thought was the Court's preferred direction now change course, if they are so inclined? Are they required to do so, as a matter of federal constitutional law?  (Obviously, they can reaffirm their earlier decisions as a matter of state constitutional law -- and states typically have analogous takings clauses in their constitutions, that they often, though not always, see as coextensive with the federal constitution.)  On the other side, to what extent may litigants continue to make the argument that the Supreme Court's statements are merely dicta, now that  the dicta has been repeated multiple times and in a manner that is explicitly authoritative?

Posted by Mark Fenster on September 27, 2005 at 06:19 PM | Permalink


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Mark, I agree that the impact on dicta on the lower courts is an interesting and important question. Lower courts, like legal academics, tend to parse Supreme Court opinions like religious texts, and take whatever guidance they can from all of the language that the Supreme Court uses. In this sense, I think you are right that oft-repeated dicta can crystallize into law in the lower courts, particularly in an area as muddy as regulatory takings.

Marty’s comment raises an interesting point about what constitutes dicta. I think it is often unclear whether a statement by the Court constitutes a reason for the Court’s decision (arguably part of the holding) or “mere” dicta on a related point. In Lingle, for example, you could say that the core holding is that substantive due process and regulatory takings use separate analyses, and that the “substantially advance” test is a substantive due process test that has no place in takings doctrine. If this is the core holding, then is the Court’s observation that the takings analysis focuses on the impact on the property owner part of its reasoning for its holding (I think it is) or mere dicta? I think that the Court, if it wants to, can call a lot of analysis in prior cases dicta (witness Justice Steven’s discussion of Mahon in Keystone). The rest of us have to guess.

Posted by: Ben Barros | Sep 28, 2005 10:18:57 AM

What is it, exactly, that you think the Lingle Court addressed in dicta? In what sense did the Court "resolve the precise reach of the heightened scrutiny for regulatory bargains" in Nollan/Dolan?

Perhaps you mean to suggest a "holding" that *monetary* exactions are not subject to Nollan/Dolan heightened scrutiny. When the decision was issued, I wrote (http://www.scotusblog.com/movabletype/archives/2005/05/summary_of_ling.html) that the *logic* of the Lingle opinion would lead to that result: "One other important development of note that could affect another significant question that has divided the lower courts: In her discussion of the Nollan/Dolan 'exactions' doctrine (involving cases in which a state has required the creation of an easement as a condition of a development license), Justice O'Connor explained that the Court applied a heightened 'means/ends' proportionality review in those cases because the exaction in question (an easement) would have been a 'per se physical taking' if imposed directly. This indicates (properly, in my humble opinion), that the Nollan and Dolan tests should not apply when the condition imposed is the mere assessment of a monetary fee, or tax, as a condition of development -- because taxes and fees, standing alone, are not 'per se' takings at all, let alone 'per se physical takings.'"

But although I do think that Lingle points strongly in that direction, I don't think the Court has definitively resolved the question -- if there are five votes to apply Nollan/Dolan to financial exactions, they'll find a way to do so notwithstanding Lingle. On the other hand, I don't think the relevant passage is dicta -- it was the explanation the Court gave for why the "substantially advances" test is appropriate in some exactions contexts but not in a straight regulatory setting.

Posted by: Marty Lederman | Sep 27, 2005 11:43:03 PM

That's a fantastic comment, Ben. Lingle is indeed a decision that, in strongly disavowing dicta, itself includes, quite prominently, strongly worded dicta. Shades of late-night undergraduate discussion about the meaning of "This sentence is a lie." O'Connor as philosophical trickster. Awesome.

That said, I think read in context -- the context here being Lingle's role in clearing out the underbrush of regulatory takings doctrine, and perhaps serving as a summation of O'Connor's role over the past few years, along with Stevens, in cutting the loose ends of the doctrine back (in the same term as she goes nuts with the Kelo!) -- it can't be right that this statement is meaningless. (I realize that isn't quite your argument, but then I'm not sure what the first sentence of your second paragraph means.) Of course, this is not to say a new Court can't just get right back at it with a new majority and reverse course again. I just think that the Lingle dicta is too strong, and has been repeated too frequently, to just be dismissed out of hand as "mere dicta" by anyone *other than the Supreme Court*.

And I'm really interested in thinking through what should and will happen in the lower courts before the Court does that (if it ever does).

Posted by: Mark Fenster | Sep 27, 2005 10:46:24 PM

I think that the Court resolved this issue in Lingle – dicta means nothing until the Court actually confronts the issue. The idea that a regulation that did not substantially advance a legitimate government interest was a taking had been repeated many times in dicta. The Court realized that the dicta had been a mistake and rejected it in Lingle's core holding. So, following Lingle’s own logic, the Nollan/Dolan dicta in Lingle doesn’t mean much.

Of course, dicta does seem to have a significant impact on the Court’s real-world decisionmaking. But Lingle suggests that the Court is more willing to eat its prior words if those words can be shown to be dicta.

Posted by: Ben Barros | Sep 27, 2005 8:34:03 PM

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