In Camretta v. Greene (analysis here), there is a lengthy discussion about opinions that resolve constitutional questions, but due to qualified immunity, award no damages. Justice Kennedy, in dissent, views these opinions as useful dicta. The distinction between holding and dicta has interested me for some time.
Several years ago I wrote a paper, titled Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction Between Holding & Dictum (SSRN). One of these days I’ll go back to it, and with this case, I have lots of meat. Here are a couple quotes of interest.
From Justice Kagan’s majority opinion:
We think just such a reason places qualified immunitycases in a special category when it comes to this Court’s review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opin-ions.” Rooney, 483 U. S., at 311 (internal quotation marks omitted); see Bunting, 541 U. S., at 1023 (SCALIA, J., dissenting from denial of certiorari) (stating that such a determination is “not mere dictum in the ordinary sense”). They are rulings that have a significant future effect onthe conduct of public officials—both the prevailing partiesand their co-workers—and the policies of the governmentunits to which they belong.
More from Kagan:
Given its purpose and effect, such a decision is review-able in this Court at the behest of an immunized official. No mere dictum, a constitutional ruling preparatory to a grant of immunity creates law that governs the official’s behavior.
From Justice Kennedy’s dissenting opinion:
This Court has given the Courts of Appeals “permission” to find constitutional violations when order-ing dismissal or summary judgment based on qualified immunity. Ante, at 9; see Pearson, supra. This invitation, as the Court is correct to note, was intended to producebinding constitutional holdings on the merits. Ante, at 10–11. The goal was to make dictum precedent, in order to hasten the gradual process of constitutional interpreta-tion and alter the behavior of government defendants. Ibid. The present case brings the difficulties of that objec-tive into perspective.
More from AMK:
The Court’s analysis appears to rest on the premise that the reasoning of the decision below in itself causes Cam-reta injury. Until today, however, precedential reasoning of general applicability divorced from a particular adversejudgment was not thought to yield “standing to appeal.” Parr v. United States, 351 U. S. 513, 516, 517 (1956) (opin-ion for the Court by Harlan, J.). That is why “[o]nly one injured by the judgment sought to be reviewed can ap-peal.” Id., at 516; see also supra, at 1–6; e.g., Chathas v. Local 134 IBEW, 233 F. 3d 508, 512 (CA7 2000) (Posner,J.) (“Adverse dicta are not appealable rulings. They cancause harm, but not the sort of harm that the courts . . .deem to create a genuine controversy within the meaning of Article III of the Constitution. Judgments are appeal-able; opinions are not” (citations omitted)). . . . Oxford Shipping Co., v. New Hampshire Trading Corp., 697 F. 2d 1, 7 (CA1 1982) (Breyer, J.) (“Since the judgment appealed from was in [a party’s] favor, and since the statement made was in no sense necessary to that judgment, the statement was dictum.There is no known basis for an appeal from a dictum”).
Our qualified im-munity cases should not permit plaintiffs in constitutional cases to make an end-run around established principles of justiciability. In treating dictum as though it were a declaratory judgment or an injunction, the Court appears to approve the issuance of such judgments outside thebounds of Article III jurisdiction.
More from Kennedy:
The desire to resolve more constitutional questionsought not lead to altering our jurisdictional rules. That is the precise object that our legal tradition tells us we should resist. Haste to resolve constitutional issues has never been thought advisable. We instead have encour-aged the Courts of Appeals to follow “that older, wiser judicial counsel not to pass on questions of constitutional-ity . . . unless such adjudication is unavoidable.” Scott v. Harris, 550 U. S. 372, 388 (2007) (BREYER, J., concurring) (internal quotation marks omitted); see generally Ash-wander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Experience teaches that there is no persua-sive reason to reverse normal principles of judicial reviewin qualified immunity cases. Compare, e.g., Pearson, supra, at 236, and Siegert v. Gilley, 500 U. S. 226, 235 (1991) (KENNEDY, J., concurring in judgment) (“[I]t seemsto reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitu-tional question first”), with id., at 232 (opinion of theCourt), and Saucier v. Katz, 533 U. S. 194, 201 (2001). Yet this Court’s “puzzling misadventure in constitutional dictum” still has not come to an end. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U.L. Rev. 1249, 1275 (2006).
If qualified immunity cases were treated like other cases raising constitutional questions, settled principles of constitutional avoidance would apply. So would conven-tional rules regarding dictum and holding. Judicial obser-vations made in the course of explaining a case might giveimportant instruction and be relevant when assessing a later claim of qualified immunity. Cf. Wilkinson v. Rus-sell, 182 F. 3d 89, 112, and n. 3 (CA2 1999) (Calabresi, J.,concurring). But as dicta those remarks would not establish law and would not qualify as binding precedent. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 67 (1996).