Holding versus Dicta

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.