I’ve long held a fascination with the idea of judges labeling and earlier decision holding, or dictum, in order to follow, or evade it. One of my first papers was on this topic.
In McCutcheon, Justice Breyer whipped out the holding/dictum distinction to note that the majority in Citizens United did not intend to overrule McConnell v. FEC:
How should we treat these statements from Citizens United now? They are not essential to the Court’s holding in the case—at least insofar as it can be read to require federal law to treat corporations and trade unions like individuals when they independently pay for, e.g., televi sion advertising during the last 60 days of a federal elec tion. Citizens United, supra, at 365. Taken literally, the statements cited simply refer to and characterize still earlier Court cases. They do not require the more absolute reading that the plurality here gives them. More than that. Read as the plurality reads them to day, the statements from Citizens United about the proper contours of the corruption rationale conflict not just with language in the McConnell opinion, but with McConnell’s very holding. See supra, at 9–11.
If the Court had intended to do this, someone would’ve barked! Including the dissenters (including Breyer):
Did the Court in Citi- zens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent [Read, “Me”] would have said something about it. The total silence of all opinions in Citizens United with respect to this matter argues strongly in favor of treating the language quoted above as dictum, as an overstatement, or as limited to the context in which it appears.
So we have a new “dog-that-didn’t-dissent” canon for dictum. If that’s what the Court meant, then Breyer would’ve dissented! This is akin to the classic Sherlock Holmes-inspired cannon of the dog that didn’t bark.