There are cases where extra-constitutional arguments appear to have resulted in decisions in conflict with the text of the US Constitution. The dictum of a particular case is referenced in multiple subsequent cases. That dictum is based on extra-constitutional arguments in apparent disagreement with the text of the Constitution, but widely accepted as correct.

There is a line of reasoning from the text of the US Constitution that contradicts that dictum and would override the reasoning used to decide those subsequent cases. The claim would show that some laws were unconstitutional when made but upheld in error.

Can an ex parte suit be brought directly before the Supreme Court to replace the dictum in a particular case?

I am aware decisions on those subsequent cases will not be reversed; however, a favorable decision on the ex parte case would have an effect going forward. It would then be up to Congress to revise the laws (or Constitution) to bring the government into compliance with the new understanding of the Constitution.

  • 1
    You understand dictum refers to parts of a ruling that are not the actual ruling? As such dictum do not providing anything binding on lower courts. Sep 28, 2023 at 20:29
  • @GeorgeWhite - Yes, however, subsequent cases have referred to the dictum (or is it dicta) in the case calling the issue settled. I disagree that it is settled and wonder how it might be changed quickly; thus direct to the Supreme Court, rather than start in a lower court with a new case taking years.
    – Rick Smith
    Sep 28, 2023 at 20:48
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    "That dictum is based on extra-constitutional arguments demonstrably in error, but widely accepted as correct." This is an utter B.S. argument that borders on trollish. There is no such thing. The U.S. Constitution, for better or for worse, means what SCOTUS says it does.
    – ohwilleke
    Sep 29, 2023 at 15:15
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    @RickSmith In law, later wins.
    – ohwilleke
    Sep 29, 2023 at 18:21
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    @RickSmith The belief that your interpretation is demonstrably the one "matching the text" is the kind of trollish kind of legal thinking that I'm getting at.
    – ohwilleke
    Sep 29, 2023 at 19:32

1 Answer 1



The federal courts cannot hear any suit if it does not present a "case or controversy," which requires that the party bringing the suit has suffered an injury, and that that injury is "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).

But disagreeing with the phrasing of a Supreme Court opinion doesn't satisfy that test:

Lujan provides a good explanation of these principles. There, a group of environmentalists sued the government to change a regulation that limited the scope of the Endangered Species Act to exclude actions taken in foreign countries, arguing that it was contrary to law. But the Supreme Court rejected the suit for lack of standing because the organization didn't have any special interest in the outcome of the dispute: its members wouldn't be directly affected by an improper interpretation of the law, nor was it sufficient to assert an interest in seeing the law properly interpreted and enforced:

We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.

Lujan, 573-74.

Further, a case or controversy generally requires adversarial presentation of the case. An ex parte case would be just one person asking the court to rewrite its precedents and therefore fail that test, as well. Ashwander v. Valley Authority, 297 U.S. 288, 346 (1936) (“The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding.”).

Even if there were some way to turn this into a real case or controversy, it could not be brought directly to the Supreme Court because the Supreme Court's original jurisdiction is limited to a few specific types of cases. This case would not fit into any of those categories.

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