The 25 year limit of Affirmative Action, not a dicta?

[David Hume]

I thought the 25 year limit in Grutter was a dicta, which is not legally binding. However, based on the debate today, it seems the justices are not treating it as a dicta.

[Donerail]

Sometimes it is useful to decide dicta is actually decisional (and vice versa). You can transform one into the other with five votes.

[SteveRogers]

Well it’s plainly dicta in that even if each and every one of O’Connor’s words are considered binding precedent, the Grutter opinion never actually said that the constitutionality of affirmative action expires in 25 years. The actual quote is, “The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In other words, the Court said, “let’s check back in in 25 years and see where we’re at, and hopefully the compelling interest won’t exist anymore.”

[David Hume]

Well it’s plainly dicta in that even if each and every one of O’Connor’s words are considered binding precedent, the Grutter opinion never actually said that the constitutionality of affirmative action expires in 25 years. The actual quote is, “The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In other words, the Court said, “let’s check back in in 25 years and see where we’re at, and hopefully the compelling interest won’t exist anymore.”

I agree, yet at least Kavanagh seems to think that this 25 years is legally binding, which shocked me.

[Torie]

No, no one thinks it is legally binding, but it is certainly relevant to the issue of whether a prior precedent is being overturned. The court is basically engaged in a balancing test here.

By the way, not all dicta is created equal. Dicta can be well though out, and very influential on the one hand, or a poorly thought out throw away line on the other that disappears into the ether.