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Thursday, January 20, 2022

Nonbinding Dicta About Nonbinding Dicta

To echo a point made by Josh Blackman over at Volokh, I don't understand where the Court gets the authority to declare part of a circuit opinion dicta in an order denying a stay of that circuit judgment. The Court did not take the case on the merits. Thus, the Court's views on whether former presidents can assert executive privilege is, itself, dicta. The DC Circuit need not follow it, though in practice they will just analyze any such executive privilege claim on the merits just to be safe.

Consider a related example. Suppose someone requests certiorari. The Court denies the request. But some Justices declare, concurring in the denial, that this or that in the lower court opinion was dicta. I think that would be an abuse of the certiorari process. How is what the Court just did different?

Posted by Gerard Magliocca on January 20, 2022 at 09:41 AM | Permalink

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