Obiter dictum

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Latin for "something said in passing."

A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation. Also referred to as dictum, dicta, and judicial dicta.  A dissenting opinion is also generally considered obiter dictum.

The subject matter of obiter dicta varies greatly and can include discussions of hypothetical facts, cases, or laws or even condemnations of other opinions. Legal scholars commonly disagree as to what exactly constitutes dicta as opposed to statements of binding precedent or authority in a given case. In Trump v. Hawaii, for example, Chief Justice John Roberts’s opinion included the following statement which betrays ambiguity as to whether it only condemns or actually overturns a prior case:

Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution' 323 U.S., at 248 (Jackson, J., dissenting).”

Though unnecessary, dicta are still studied and valued for their potential usefulness. Dicta are frequently incorporated in later opinions and sometimes even serve as the basis of those opinions. An example of this is the United States v. Carolene Products case, where Justice Harlan F. Stone suggested in the now-famous Footnote 4 that a legal rule more stringent than the rational basis test be applied in hypothetical, future situations. The language in Footnote 4 eventually served as the basis for the doctrine of strict scrutiny

 [Last updated in July of 2020 by the Wex Definitions Team]