Justices Alito and Sotomayor on How Courts Read Dicta

Catching up on Supreme Court oral arguments, I came across an interesting exchange in Royal Canin U.S.A. v. Wullschleger (a case regarding post-removal amendments to a complaint) where Justice Sotomayor suggested that some lower court judges may be influenced by dicta in Supreme Court opinions.

Here’s a snippet from the transcript:

JUSTICE ALITO: Well, do you think that courts of appeals interpret our decisions differently than we do? I mean, you know, I served on a court of appeals for 15 years. If I came across strong dictum in a Supreme Court decision, I would likely just acknowledge it and move on. But, here—

(Laughter.)

JUSTICE ALITO:—we have—

JUSTICE SOTOMAYOR: Not now.

(Laughter.)

JUSTICE ALITO:—more of a responsibility—it depends, Justice Sotomayor—

(Laughter.)

JUSTICE ALITO:—both when we’re considering—when we’re considering what we’ve written—we understand how these things are written. You know, we understand how these footnotes are written. Can we interpret them a bit differently?

While listening to the audio, I interpreted Justice Alito as suggesting that there are levels of dicta, and justices, especially those with prior Supreme Court experience, can discern between them. Justice Sotomayor seemed to imply that some lower courts do not simply acknowledge and move on when encountering “strong” dicta in a Supreme Court opinion but instead use it as guidance to challenge established precedents. Justice Alito’s response indicated that he understood her point in a similar manner. (This may be clearer when listening to the audio recording.)

It’s unclear which specific case(s) Justice Sotomayor had in mind, but there are numerous possibilities.