Justices Alito and Sotomayor on How Courts Read Dicta

An amusing and potentially revealing exchange in a recent oral argument.

Catching up on Supreme Court oral arguments, I was struck by the following exchange in Royal Canin U.S.A. v. Wullschleger (a case about the effects of post-removal amendments to a complaint) in which Justice Sotomayor suggested that some lower court judges are taking their cues from dicta in Supreme Court opinions.

From the transcript:

JUSTICE ALITO: Well, do you think that—that courts of appeals read our
decisions differently than we may? I mean, you know, I'm—I was on a
court of appeals for 15 years. If I saw a strong dictum in a Supreme Court decision, I
would very likely just salute and move on. But, here —

(Laughter.)

JUSTICE ALITO:—we have —

JUSTICE SOTOMAYOR: Not now.

(Laughter.)
JUSTICE ALITO:—more of an obligation—it depends, Justice Sotomayor —

(Laughter.)

JUSTICE ALITO:—both when we're considering—you know, when we're considering
what we've written—we know how these things are written. You know, we know how these footnotes are written. Can—do we have liberty to read them a little bit  differently?

Listening to the audio, I took Justice Alito to be suggesting there is dicta and then there is dicta, and justices (particularly those who may have been on the Court at the time) can often tell the difference. I also took Justice Sotomayor to be suggesting that some lower courts don't merely "salute and move on" when they see "strong" dicta in a Supreme Court opinion, but rather take that dicta as their cue for how to proceed and push beyond settled precedent. Justice Alito's response suggests to me he interpreted her comment in the same way. (Again, this may be more clear on the audio.)

I am not sure which case(s) Justice Sotomayor had in mind, but there are many potential candidates.

Comments

[Dan Schiavetta]

(deleted)

[Frank Drackman]

Justice Alito knows Dicta when he sees it.

[JoeFromtheBronx]

One value of Oyez.com audio is that it is easier to search than the SCOTUS page.

I thought the Alitos only saluted flags.

Sotomayor was also a long-term lower court judge. Such experience can be useful.

[David Nieporent]

I also took Justice Sotomayor to be suggesting that some lower courts don’t merely “salute and move on” when they see “strong” dicta in a Supreme Court opinion, but rather take that dicta as their cue for how to proceed and push beyond settled precedent. Justice Alito’s response suggests to me he interpreted her comment in the same way.

I took her to be suggesting that Alito doesn’t really take a deferential approach to past SCOTUS decisions now.

[Noscitur a sociis]

I took her to be saying that some lower court judges (e.g. the Fifth Circuit, in her mind) don’t seem to be interested in “salut[ing]” instructions from the Supreme Court that they don’t like, unless they really absolutely have to.

[Sarcastr0]

“just salute and move on” means ignore.
Alito is saying he ignored dicta when he was a judge, and Sotomayor is saying not everyone does that.

I get the Alito position clearly; Sotomayor’s objection is less clear to me.

[DavidOS]

No, in the context of this argument it’s clear that “just salute and move on” means follow the dicta without thinking about how well reasoned it is. We see SCOTUS has said something about the issue (even if it’s dicta), honor that (salute) and go on to the next case without having to do the hard work of actually figuring out what’s correct (move on).

My take on Sotomayor’s statement was in line with the OP of this comment thread: Alito no longer pays deference to past Supreme Court decisions now that he’s on the highest court.

[Noscitur a sociis]

My take on Sotomayor’s statement was in line with the OP of this comment thread: Alito no longer pays deference to past Supreme Court decisions now that he’s on the highest court.

That’s the point that Alito was positing—that the Supreme Court doesn’t have to give the same weight to its prior pronouncements that lower courts do.

[Noscitur a sociis]

How would that make any sense in this context?

[Sarcastr0]

Looks to me like Alito is saying they need to write their dicta with care because not every lower court acts like he does, but at the Supreme Court level they may have more insight into the background of their opinions’ drafting which gives them a different perspective.

Can’t be sure – but ‘just salute and move on’ means what it means.

[Reallynotbob]

This argument took place about a week after a district court judge ruled that the entire False Claims Act qui tam structure is unconstitutional in U.S. ex rel. Zafirov v. Fla. Medical Assoc. LLC, No. 19-cv-1236 (M.D. Fla. Sept. 30, 2024) (Mizelle, J.). The judge is a former Thomas clerk, and essentially made a 50-page case for a bit of dicta from Justice Thomas’s 9-0 majority opinion in 2023 in Schutte v. Supervalu questioning whether the Appointments Clause has always barred relator actions. No other Justice signed on to this portion of the decision.

I submit this is an example of a district court not “saluting and moving on,” but rather taking dicta to be a request to feed SCOTUS a ruling the district court thinks one or more Justices want presented.

[Reallynotbob]

Apologies for the error — I meant Thomas’s lone dissent in U.S. ex rel. Polansky v. Executive Health Resources, not the Schutte decision. That’s what I get for not fact-checking before I press submit.