A 1994 article by Michael Dorf defines dicta as “statements in a judicial opinion that are not necessary to support the decision reached by the court. A dictum is usually contrasted with a holding, a term used to refer to a rule or principle that decides the case.”25 He added: “It is a commonplace that holdings carry greater precedential weight than dicta, ‘which may be followed if sufficiently persuasive but which are not controlling.’”26 In the case of Sutherland’s dicta in Curtiss-Wright, scholars have demonstrated for more than seven decades that his statements about presidential power in the field of external affairs are not persuasive. Nevertheless, the greater precedential weight in Curtiss-Wright has not been the holding but rather the dicta. A study by Michael Abramowicz and Maxwell Stearns in 2005 relies on Black’s Law Dictionary to define dictum “as a statement in a judicial opinion that is ‘unnecessary’ to the case resolution.”27 They define holding to consist of propositions and paths of reasoning that “(1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta.”28 Their purpose is to develop clear distinctions between holdings and dicta to be applied to judicial rulings, with the former given dominant status. In Curtiss-Wright, Justice Sutherland’s declarations about the sole-organ doctrine and other misconceptions should be considered not merely dicta but erroneous dicta. Yet federal courts, the elected branches, and some scholars regularly treated them as the holding. The overlap between dicta and holding is analyzed by Judith Stinson in an article in 2010. Despite much guidance from the legal profession, “lawyers and judges continue to confuse dicta for holding and holding for dicta.”29 To the extent that courts treat dicta as holding, “they are more likely to reach incorrect decisions, to exceed their judicial authority, and to generate illegitimate results.”30 That accurately summarizes the influence of Curtiss-Wright. Stinson observes that Supreme Court opinions “tend to be lengthy, allowing more space for extraneous commentary.”31 No doubt about that. In defense of dicta, Foster Calhoun Johnson in 2012 looked to dicta as “a unique tool for addressing injustice, without doing injustice,” especially in cases involving equitable relief.32 With regard to Curtiss-Wright, Justice Sutherland’s profound misconceptions and errors about plenary and exclusive presidential power have created a serious imbalance between the two elected branches in the field of foreign affairs. A concentration of power in one branch, the result not of constitutional grants but of judicial error, poses great risk of injustice. To Johnson, by employing dicta “to announce a prospective new rule, the court advances the interests of justice while reconciling tensions in legal doctrine.”33 Justice did not come from Sutherland’s dicta in Curtiss-Wright. Johnson says that the virtue of dicta “is that it can correct the law without betraying the law.”34 That may occur in cases of equitable remedy. With regard to artificially inflated theories of presidential power, Sutherland’s dicta betrayed the law and the Constitution. According to Johnson, dicta’s virtue “is precisely this: It corrects the law without betraying the law.”35 With Curtiss-Wright the law was not corrected. It was systematically undermined. Writing in 2006, Judge Pierre N. Leval of the Second Circuit expressed concern that dicta “no longer have the insignificance they deserve. They are no longer ignored. Judges do more than put faith in them; they are often treated as binding law.” The distinction between dictum and holding, he said, “is more and more frequently disregarded.”36 Although many agree that dictum does not establish binding law, “this rule is now honored in the breach with alarming frequency.”37 The acceptance of prior dicta as binding law “results in some part from time pressures on an overworked judiciary.”38 As to Supreme Court dicta, Judge Leval said it is “sometimes argued that the lower courts must treat the dicta of the Supreme Court as controlling,” even though the Court’s dicta “are not law.”39 He explained why dicta can provide weak and misleading guides to the formation of law. First, courts are supposed to reach a decision after “confronting conflicting arguments powerfully advanced by both sides. When, however, the court asserts rules outside the scope of its judgment, that salutary adversity is often absent.”40 As a second point, Judge Leval cautioned that when a court asserts a rule of law in dictum, it “will often not have before it any facts affected by that rule. In addition, the lack of concrete facts increases the likelihood that readers will misunderstand the scope of the rule the court had in mind.”41 Third, another weakness of law made through dicta is that “there is no available correction mechanism. No appeal may be taken from the assertion of an erroneous legal rule in dictum. Frequently, what’s more, no party has a motive to try to get the bad proposition corrected. No party will even ask the court to reconsider its unfortunate dicta.”42 That has been the history of the sole-organ doctrine in Curtiss-Wright. Finally, Judge Leval recalled that his experience as a judge “has shown me that assertions made in dictum are less likely to receive careful scrutiny, both in the writing chambers and in the concurring chambers. When a panel of judges confers on a case, the judges generally focus on the outcome and on the reasoning upon which the outcome depends. . . . There is a high likelihood that peripheral observations, alternative explanations, and dicta will receive scant attention.”43 Justice Robert Jackson once described the Supreme Court as having the final word: “We are not final because we are infallible, but we are infallible only because we are final.”44 Chief Justice Rehnquist later described the Court’s record with greater clarity and accuracy: “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”45 A misrepresentation that appears in Curtiss-Wright is not a valid source of authority. Courts should not continue to cite an erroneous secondary source, even if it appears regularly in Supreme Court and lower court dicta. Instead, the Court should revisit a judicial mistake and correct it. The Supreme Court has a capacity to correct its errors, often within the space of three years, as it did with the compulsory flag-salute cases in 1940 and 1943.46 Interestingly, the Justice who wrote for the Court in the second case was Robert Jackson, clearly demonstrating that the Court is neither infallible nor final. The executive branch has a capacity to correct its errors. Solicitors General have confessed error in the Supreme Court approximately 250 times over the past century, with most of the confessions involving criminal cases. 47 A recent example is Acting Solicitor General Neal Katyal stating in 2011 that Solicitor General Charles Fahy in the Japanese-American cases during World War II failed to inform the Supreme Court about matters directly relevant to the cases of Gordon Hirabayashi and Fred Korematsu. 4 x The Supreme Court has available to it a procedure to revise its opinions to catch spelling errors, duplicate words, punctuation and spacing problems, citation form, and allow for word additions, deletions, and substitutions.49 In one case, the Supreme Court released an opinion that misstated who was President of the United States in 1799.50 With regard to erroneous dicta, the Supreme Court appears to have little process that enables it to publicly admit error and remove serious misconceptions from prior cases that distort the constitutional powers available to the President and weaken the system of checks and balances.51 In an article in 2014, Judge Andrew D. Hurwitz of the Ninth Circuit could recall few judicial rulings "acknowledging common human error. '' 52 With regard to such errors, he wondered whether the authority of the Supreme Court in a recent case ''would have suffered a whit had it just acknowledged its collective humanity. If one views the Supreme Court as Olympian, of course, failure to know everything is unthinkable."53 Whenever judges learn of significant mistakes that affect the outcome of a case, "there is value to correcting them transparently." Correcting errors, Judge Hurwitz points out, "is not only required to do justice, but reemphasizes a sad but important truth-that although almost all judges try very hard to do their best, we sometimes fall short. More frequent admissions of human fallibility will increase the public appreciation of the role of the courts and their capacity for human error."54
A 1994 article by Michael Dorf defines dicta as “statements in a judicial opinion that are not necessary to support the decision reached by the court. A dictum is usually contrasted with a holding, a term used to refer to a rule or principle that decides the case.”25 He added: “It is a commonplace that holdings carry greater precedential weight than dicta, ‘which may be followed if sufficiently persuasive but which are not controlling.’”26 In the case of Sutherland’s dicta in Curtiss-Wright, scholars have demonstrated for more than seven decades that his statements about presidential power in the field of external affairs are not persuasive. Nevertheless, the greater precedential weight in Curtiss-Wright has not been the holding but rather the dicta Black’s Law Dictionary to define dictum “as a statement in a judicial opinion that is ‘unnecessary’ to the case resolution.” Justice Sutherland’s declarations about the sole-organ doctrine and other misconceptions should be considered not merely dicta but erroneous dicta. Yet federal courts, the elected branches, and some scholars regularly treated them as the holding. To the extent that courts treat dicta as holding, “they are more likely to reach incorrect decisions, to exceed their judicial authority, and to generate illegitimate results.”30 That accurately summarizes the influence of Curtiss-Wright. h regard to Curtiss-Wright, Justice Sutherland’s profound misconceptions and errors about plenary and exclusive presidential power have created a serious imbalance between the two elected branches in the field of foreign affairs. A concentration of power in one branch, the result not of constitutional grants but of judicial error, poses great risk of injustice Justice did not come from Sutherland’s dicta in Curtiss-Wright With Curtiss-Wright the law was not corrected. It was systematically undermined it is “sometimes argued that the lower courts must treat the dicta of the Supreme Court as controlling,” even though the Court’s dicta “are not law No party will even ask the court to reconsider its unfortunate dicta.”42 That has been the history of the sole-organ doctrine in Curtiss-Wright. A misrepresentation that appears in Curtiss-Wright is not a valid source of authority. Courts should not continue to cite an erroneous secondary source, even if it appears regularly in Supreme Court and lower court dicta. Instead, the Court should revisit a judicial mistake and correct it. Whenever judges learn of significant mistakes that affect the outcome of a case, "there is value to correcting them transparently." Correcting errors, Judge Hurwitz points out, "is not only required to do justice, but reemphasizes a sad but important truth-that although almost all judges try very hard to do their best, we sometimes fall short. More frequent admissions of human fallibility will increase the public appreciation of the role of the courts