Sam Alito and his Big Dicta

by Sherry F. Colb

In his draft opinion for the Supreme Court in Dobbs v. Jackson Women's Health Organization, Justice Samuel Alito (SA) criticizes Roe v. Wade for a variety of supposed flaws. One of the critiques rests on the claim that Justice Blackmun's opinion reads like a statute. What is wrong with a statute? you might wonder. The answer is that legislation is supposed to be different from judicial opinions. While legislation aims to anticipate the universe of categories into which particular conduct might fall, judicial opinions decide specific questions of law that have arisen between the parties.

A statute, for instance, might say (as quite a few do) that people must not conduct an enumerated set of businesses on Sunday (which, if you were wondering, is not at all the imposition of a Christian holiday on the American population, pursuant to McGowan v. Maryland). A judicial opinion might say that selling shampoo on Sunday is permissible under the court's interpretation of the statute in question.

According to SA, one of Justice Blackmun's sins in Roe was to create a trimester framework for pregnancy and then develop the sorts of regulation of abortion that the government could validly apply in each of the trimesters and under which circumstances. After the Court decided Roe by a 7-2 vote, Americans knew not only whether the Texas statute under consideration was unconstitutional but also what the contours of lawful abortion regulation would be in the coming years. SA condemned this feature of Roe because he saw the complex regulatory scheme as falling outside the scope of a proper judicial opinion.

For SA, a judicial opinion should not consist mainly of dicta, and the Roe opinion did just that. What is dicta? The answer to that question is not entirely straightforward, but here is a rough and ready definition. Dicta refers to aspects of a legal opinion that are unnecessary to deciding the case between the parties. Holding, by contrast, is that part of the opinion that resolves the legal conflict between the parties. The holding in Roe, on this rough and ready definition, was that applying the Texas statute prohibiting abortion to Jane Roe violated the Fourteenth Amendment's Due Process Clause. The dicta in Roe provided trimester-by-trimester instructions on what Texas (or any other state) could lawfully do without violating due process and what it could not do. No regulation during the first trimester was permissible. Regulation in the interests of the pregnant woman's health alone was permissible during the second trimester. And regulation and prohibition of the procedure during the third trimester in the interests of protecting potential life would be permissible unless it barred an abortion to protect the life or health of the pregnant woman. What makes all of this material dicta is that the Court did not need to say any of it in order to rule, as it did, in favor of Jane Roe in her lawsuit against the Texas Attorney General.

The concepts of holding and dicta have application in our daily lives. Assume that I am feeling hungry and want to order food from my neighborhood Ethiopian restaurant for dinner. What I need to know in order to carry out my wishes is whether the restaurant is open for delivery right now. If I call the restaurant and ask "Are you taking orders for delivery right now?" they can say "Yes," and I can proceed to order. But imagine that I call and get a pre-recorded message. The message tells me that the restaurant is open for indoor dining and delivery on Tuesdays through Saturdays, from 3pm until 11pm, with the exceptions of Christmas day and New Year's day, when the restaurant is closed. Given that information, I now know what I need to know and I also know some more information. I might write down some of what I heard on the message so that if I am feeling like ordering Ethiopian food in the future, I will be able to tell at a glance whether I can do so at that time. The holding answers a very specific question that I (or parties to a lawsuit) bring to the court. The dicta elaborates and answers questions that might come up later. It also sometimes explains the reasoning behind the precise answer for the parties, reasoning that gives us clues or definite answers to questions we have yet to ask, although some scholars deem most or all of such reasoning part of the holding, reserving the term dicta for a complete aside bordering on a non sequitur.

It is nearly impossible to write a judicial opinion that is all holding and no dicta, if dicta includes legal reasoning. One would have to simply state the facts of the case and say that the petitioner wins. Sometimes the Court treats older precedents as if they embraced only the very narrowest of holdings, and that move enables the Court to effectively overrule precedents without having to acknowledge that it is overruling precedents. In the case of Roe, however, SA was happy to own up to overruling a precedent. Indeed, SA's draft opinion repeatedly uses variations on the phrase "we must overrule Roe and Casey," displaying a sort of pride at being able to hang these two hobgoblins for conservatives. SA's opinion in bold rather than careful.

Why does that matter? And why do I have such a juvenile title for this post? The answer is that, in addition to my being a bit juvenile when my status as an equal citizen is threatened, SA is attacking Justice Blackmun's opinion for how dicta-filled it is, and SA is carrying out this attack in an opinion that is itself a festival of dicta. One could easily have forgotten, in reading SA's draft opinion, that the question presented to the Court was whether the Mississippi abortion statute barring the procedure after 15 weeks without an exception for rape or incest violates the Constitution.

SA's answer to this question is a "Hell no!." In addition to stating that a 15-week ban is acceptable and perhaps explaining why a rape or incest exception is unnecessary (which--spoiler alert--SA never does), he might have said something about the differences between 15 weeks and viability and rejected the significance of any such differences. SA might have then left for the next abortion case, in the way that the Chief Justice likely would have, the question of whether a ban at an earlier stage of pregnancy might be permissible as well. In the past, because of this sort of incrementalism/judicial humility, the law developed gradually, and the judges had concrete facts before them in deciding about particular scenarios rather than simply making a broad pronouncement that the law is now the opposite of what it was before Donald J. Trump became the unlikely birther of a modern theocracy.

Writing an opinion containing mostly dicta is not necessarily a problem, of course, but it is for SA, so he should perhaps look at the stick in his eye before pointing out the speck in Justice Blackmun's.

SA's opinion is chock full of dicta because he has the votes and he wants everyone to know and to remember that he "must" overrule the two decisions that recognized a woman's entitlement to refuse to build a baby in her body. In point of fact, though, there is no "must" about the opinion. By definition, an opinion that is virtually all dicta (what does a zygote have to do with a 15 weeks fetus, after all?) is in no way a "must." Dicta in general--and SA's dicta in particular--is entirely gratuitous, like his arrogant shots at a Justice who is no longer alive and who was ten times the Justice that SA will ever be. Because this decision is dicta, then, it does not have the force of holding. We must all remember that fact when it is time to replace the current religious Court with jurists prepared to bring honor back to the job and rights back to women.