What is necessary and what is wise

Anyone who has had a boss knows there is a difference between a command and a suggestion; ignoring the latter may be unwise and earn you a reputation, while disobeying the former is insubordinate and can get you in trouble. The lower federal and state courts follow a similar principle: They are obligated to obey the holdings of the courts above them in the hierarchy, but may choose whether to follow their dicta. An opinion's holding is binding on lower courts, but its dicta is not. Maryland v. Wilson, 519 U.S. 408, 412-413 (1997); Gomez v. Superior Court, 35 Cal.4th 1125, 1155 (2005).

Alas, it can sometimes be difficult to assess when language in an opinion is part of its holding as opposed to mere dicta, as the United States Supreme Court's recent per curiam opinion in Andrew v. White, No. 23-6573, 2025 U.S. LEXIS 406 (Jan. 21, 2025), illustrates.

The distinction is simple enough in the abstract: An opinion's "holding" means its "disposition" as well as "the preceding determinations 'necessary to that''' disposition, Tyler v. Cain, 533 U.S. 656, 663 n.4 (2001), emphasis omitted, while "obiter dictum" (Latin for all "other things said") ostensibly refers to everything else stated in the opinion, People v. Vang, 52 Cal.4th 1038, 1047 n.3 (2011).

Sometimes, it is easy to sort an opinion's holding from its dicta. If, for instance, an opinion rules that summary judgment was properly granted in a case for a single reason, then both the disposition and its single reason constitute the holding of the case.

But it is not always so easy.

Sometimes, an opinion offers multiple bases for its disposition. For instance, an opinion may uphold the admission of a piece of evidence both because the evidence was properly authenticated and because it did not run afoul of the hearsay rule. Along similar lines, opinions sometimes offer multiple reasons for each basis. For instance, an opinion may explain that the evidence did not run afoul of the hearsay rule both because the out-of-court statement was not admitted for its truth and because that statement falls within a hearsay exception. In each of these scenarios, the opinion offers multiple, independent bases or reasons. Where any single basis or reason could, by itself, support the opinion's disposition, are each of those independent bases and reasons "necessary to that" disposition?

By and large, the courts have said, "Yes." "[W]hen a decision is based on two separate grounds," they reason, "neither is dictum" - at least when each ground in the opinion independently justifies the disposition. Varshock v. Dep't of Forestry & Fire Prot., 194 Cal.App.4th 635, 646 n.7 (2011); Lemon v. Los Angeles T. R. Co., 38 Cal.App.2d 659, 666 (1940). This principle is largely a function of necessity: If an opinion rests independently on Ground A and Ground B, it can't be that neither of them is binding - so both of them are.

Other times, an opinion responds to a litigant's arguments seeking to undermine the opinion's disposition. Are those responsive statements - even though they are not part of the opinion's affirmative justification of its disposition - part of the holding or are they dicta? 

By and large, the courts have again said that such statements are part of the holding in most cases. Vang, 52 Cal.4th at 1047 n.3. But that is probably not true in every case. If, for instance, a litigant argues that the court's disposition would be wrong because the moon is made of green cheese, the court's responsive statement that the moon is not made of green cheese is likely dicta because it has little to do with the court's affirmative reasoning.

In yet other instances, an opinion makes statements that sweep more broadly than the facts of the case warrant. For instance, an opinion might uphold as constitutionally valid the stop of a motorist based on reasonable suspicion due to a combination of factors (perhaps a broken taillight, poor driving, the bad neighborhood, and a kerchief hanging out of one window), but the opinion might also state that stopping a car in a bad neighborhood is sufficient by itself to constitute reasonable suspicion. Is that broader statement part of the holding or is it dicta? Most cases deem it to be dicta. Hart v. Clear Recon Corp., 27 Cal.App.5th 322, 330-31 (2018); People v. Mason, 52 Cal.3d 909, 942-43 (1991).

But what if the opinion gives multiple reasons for its disposition, one of which is the court's primary reason and the other of which is more of a subsidiary point? Is the subsidiary point part of the holding or mere dicta?

In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court confronted whether the admission of victim impact evidence violated a capital defendant's Eighth Amendment right against cruel and unusual punishment. Payne held the answer was, "No." The court first explained that "[i]n the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes." Id. at 825. The court then added: "In the event that [victim impact] evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause ... provides a mechanism for relief." Id. Is this latter observation about the availability of a different constitutional remedy part of Payne's holding or is it dicta?

That was the issue in Andrew.

The defendant in Andrew sought federal habeas corpus relief on the ground that the court had erred in admitting concededly irrelevant and inflammatory "evidence about [the defendant's] sex life and about her failings as a mother and wife" at the trial at which she was convicted and sentenced to death for orchestrating the death of her ex-husband. 2025 U.S. LEXIS 406 at *1. Although the chief issue was whether the principle that due process prohibits the admission of unduly inflammatory evidence that renders a trial fundamentally unfair constituted a "clearly established federal law" within the meaning of the federal Antiterrorism and Effective Death Penalty Act (AEDPA), the members of the Court grappled over the subsidiary question of whether Payne's statement about using due process to bar the admission of unduly prejudicial evidence was part of Payne's holding. Id. at *6-7.

The per curiam opinion ruled it was.

But Justice Clarence Thomas (joined by Justice Neil Gorsuch) vehemently disagreed, asserting that "a fairminded jurist could conclude that Payne's lone sentence on due process is not a holding at all" because it was not "necessary to" Payne's disposition, which rested chiefly on the rationale that victim impact evidence serves legitimate purposes. Id. at *28.

Although Andrew settled the matter of how to read Payne, appellate opinions often provide multiple reasons for their dispositions and can place varying degrees of weight on those reasons. In Westmoreland v. Kindercare Education LLC, 90 Cal.App.5th 967, 979 (2023), for example, the court looked at a prior decision, which (1) found a contract to be unambiguous and (2) went on to note that "to the extent" the contract was "uncertain," the ambiguity should be construed against the drafter. Westmoreland ruled that the prior decision's application of the against-the-drafter canon was an "alternative rationale" that was "dicta" in light of the decision's holding that the contract was unambiguous. Id. Put differently, Westmoreland treated the second rationale more as an afterthought and less as a pair of suspenders to the first rationale's belt.

As Andrew and Westmoreland illustrate, it can be challenging to draw a line between opinions where multiple reasons supporting a disposition should each be read as holdings and opinions where some reasons are holdings and others are dicta. The line is a fuzzy one. What is more, that line turns primarily on the particular language an opinion chooses to use when characterizing the importance of each proffered reason.

This fuzziness has consequences. Courts should be careful when characterizing the rationales supporting the dispositions of their opinions, and litigants should be careful to advocate for the characterization that best favors their position - a holding if you like it, and dicta if you don't.

Such care may not be strictly necessary, but it is probably wise.