Legal Commentary

We spend a lot of time teaching the students what constitutes a holding, and how to distinguish a holding from dicta.  But as a practical matter, it seems that the distinction has largely lost its importance.  Lower courts almost always treat dicta in Supreme Court opinions as equivalent to holding.  Even the Supreme Court frequently treats its dicta as equivalent to holding.

Yesterday, in Gomez-Perez v. Potter, the Court went one step further and classified some dicta as holding.  The case is about whether the ADEA, specifically 29 U.S.C. § 633a(a), authorizes a retaliation claim for a federal employee who claims to have suffered adverse consequences for filing a complaint about age discrimination.  Because the suit is against the government, one subsidiary issue was whether sovereign immunity barred the suit.  To waive sovereign immunity, a statute must clearly state that it does so.  The Court held that it didn?t need to determine whether § 633 contained such a clear statement, because a different provision gave the necessary waiver of sovereign immunity.  But then the Court went on to say: ?But in any event, even if §633a(a) must [contain a clear statement], we hold. . . that §633a(a) prohibits retaliation with the requisite clarity.?  Maybe I am being too picky, but this seems to me a misuse of ?holding.?  Introducing the sentence with ?even if? suggests that the premise of the sentence is counterfactual, so the conclusion is not necessary to the reasoning of the decision. 

Classifying the conclusion as holding may reflect that the Court wants lower courts to view its dicta as binding.  That makes sense, I suppose, because the Court may want to answer as many questions as possible in a single opinion because of the small number of cases it takes.  Of course, it might not be so sinister.  Maybe we can chalk the use of ?hold? up to careless writing.  After all, the same sentence is already shoddy by using both ?in any event? and ?even if.?  (The phrase ?in any event? includes the concepts of ?even if? and ?even if not.?)  But even if the use of ?hold? is due to carelessness, it still has the effect of blurring the distinction between holding and dicta.