Recently on a TMV comment thread I was presented with this question:
“Well, now that you have brought up the subject of reading legal opinions, Elijah, I have my opening to ask HOW, in your view as a legal professional, a layperson *should* read a legal opinion?”
Because of the many discussions on legal topics, constitutional issues and political policy issues that touch on court decisions or are later affected by court decisions, it seemed a pertinent question.
To start at the beginning, find the actual opinion. Generic search engines will often lead you to page after page of articles about an opinion before a link to the opinion itself. For U. S. Supreme Court cases, I link directly to the Court’s website, www.supremecourt.gov . In the upper right section of the front page it lists recently decided cases with direct links. For cases other than the U. S. Supreme Court, identify a legal search engine that works for you. I use a dedicated search engine giving me access to all federal and state court decisions, constitutions and statutes. Unfortunately you have to be a member of the bar to use it, but there are others available to the general public.
Moving forward I will use a specific case, McDonald v. Chicago, as a working example. That’s the case that extended Second Amendment analysis to state and local government statutes and ordinances.
Most opinions are comprised of multiple components. These generally include a recitation of the facts of the specific case, a procedural section explaining how the case is procedurally before the court, the rationale or how the court came to the conclusion it arrived at, dicta which is made up of non-binding pronouncements on issues related to the case, the holding or binding precedent of the decision, and the disposition ordering what happens to the specific case, for example affirming the lower court decision or reversing and remanding back to the lower court.
1. Read the Synopsis. Most high court cases, other than per curiam decisions, begin with a synopsis, also called a syllabus or headnote. Here is what the U. S. Supreme Court says about a syllabus, from McDonald:
“Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.”
Note two things about a synopsis or syllabus. First it is not written by a judge. It is often written by a law clerk or in the case of the U. S. Supreme Court the Reporter of Decisions. Second, the headnote is not part of the decision. If there are any errors or differences between the synopsis and the actual opinion, only the actual opinion counts.
The synopsis helps in two ways. It can provide a good shorthand understanding of the case. In McDonald, the Syllabus is 6 pages. The full opinion, including concurring opinions and dissenting opinions is 209 pages. At the U. S. Supreme Court, the federal Court of Appeals or the highest state appellate courts, the law clerks who write the synopsis tend to be from the highest echelons of law school, and their summaries are usually an accurate rendition of the full opinion. Think Cliff Notes. The second use for the syllabus is to direct the reader to that portion of the case in which the reader is most interested, assuming one does not want to slog through the entire opinion. You have the option of stopping after the synopsis if all you want is a quick overview.
2. Learn to count like a lawyer. At the Supreme Court level, both state and federal, some opinions are majority opinions in which more than half the Court joins in one majority opinion. Other opinions are plurality opinions in which more than half the Court arrives at the same holding and disposition, but no majority agrees on the rationale for arriving at those conclusions. Other cases, like McDonald, are part majority opinion and part plurality.
In McDonald, five justices join in the main opinion on most of the parts of the decision and join in the holding and disposition, overturning Chicago’s gun ban law as unconstitutional. However, only four justices agree that the Second Amendment applies to the states through the vehicle of “substantive due process.” Clarence Thomas concurs in the result, providing the fifth vote to overturn the law, but disagrees with the use of substantive due process to get to the result.
Unanimous opinions tend to have greatest weight. Chief Justice Earl Warren believed that all race relations civil rights cases during his tenure should be unanimous for maximum impact. They all were. Majority opinions have the next greatest weight and plurality opinions are the easiest to attack in subsequent cases. In context, even plurality decisions are firm precedent and are not to be confused with “easy to overturn.”
3. Scan the facts and skip the procedural explanation. For the lay person interested in what the case says about the constitution or statute, a quick scan of the facts is sufficient. The procedural explanation is usually, though not always, of interest only to legal professionals. Sometimes courts will do the reader the favor of designating with sub headings the factual and procedural sections of the opinion.
4. Read the main opinion. If you’re going to read a concurring opinion or dissenting opinion, read the main opinion first. Concurring and dissenting opinions play off the main opinion and are not fully understood if the main opinion has not been read. If you want to shorten your time with a case, you can skip the concurring and dissenting opinions. The holding of the case will be found in the main opinion. As an observation, the concurrences and dissents are often a more interesting read, though they do not hold the value of being binding precedent.
5. Learn to distinguish between a case’s holding and dicta. Using McDonald as an example, there are a number of holdings in the case. The two principle holdings are: 1. that Second Amendment protections apply to state and local laws, and 2. that Chicago’s gun ban law is unconstitutional under Second Amendment analysis.
Dicta in McDonald would be something like Alito’s pronouncement in the main opinion that certain reasonable regulations of firearms would be constitutional under the Second Amendment. Whether or not certain restrictions and regulations might be constitutional was not the issue before the court. Only the constitutionality of Chicago’s law was before the court. That does not mean that dicta is meaningless. Quite the opposite.
Though dicta is not binding precedent, it provides the reader with a fuller understanding of the court’s reasoning. It can be cited in legal briefs as “persuasive”, though not binding. It informs the reader and perhaps legislators of where the court might be likely to draw constitutional or statutory lines in future cases. And, to the legal professional, dicta often presents an invitation to bring future cases to the court that will result in binding precedent on an issue only addressed as dicta in the present case. Such a case based on the dicta in McDonald might be to challenge a law that prohibits carrying guns in buildings open to the public.
Don’t confuse dicta with the court’s rationale. The rationale usually is a lengthy discussion, often taking up most of the opinion, where the writer informs the reader of why and how the writer comes to his/her conclusion. It generally has multiple references to other cases and/or statutes. Rationale can also be cited as “persuasive” in future legal arguments.
Distinguishing dicta from a case’s holding is where most of the trouble comes when reading opinions. Even among lawyers, the distinction often gets muddled during briefing and argument. Here are a couple of simple, and I hope helpful, tools: 1. A holding in a case is usually short. If it can’t be expressed in one simple sentence, it’s probably not a holding. As an example, “the protections of the Second Amendment apply to state and local laws.” 2. When in doubt, ask yourself what the specific issues in this particular case were. In McDonald, two main issues were whether the Second Amendment applied and, if it did, whether Chicago’s gun ban was constitutional. Ruminations about other hypothetical laws or regulations are not the issues being decided by this court in this case and are, therefore, persuasive but nonbinding dicta.
6. A final suggestion. For anyone who wants to take this seriously, try doing an outline of several opinions. I suggest short opinions for this exercise. Here’s what a basic outline would encompass.
Case Name: Marco v. City of Beesburg
Statement of Facts: Neighbors held a block party impeding traffic on their street. Police broke up the party and arrested the organizers for blocking traffic without a permit.
Procedure: Direct appeal from final judgment of conviction.
Issue(s) Presented: Does the city ordinance requiring a permit for a block party violate the constitutional right to peaceably assemble?
Holding: The ordinance is constitutional
Rationale: Rational basis for the ordinance. Public health and safety. Deminimus infringement.
Decision/Disposition: Judgment affirmed.
Dicta: Had the neighbors applied for a permit and been unreasonably refused, the actions of the city would violate the right to assemble.
A few final words. This is designed to be helpful to lay persons who want a basic understanding of reading legal opinions. It is not all encompassing. Much is left out. Some of the suggestions and “shortcuts” mentioned here would be inappropriate for a legal professional.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.