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The U.S. Supreme Court has long been recognized as a policy-making institution ([Dahl 1957]; [Murphy 1964]). The legal rules pronounced in the Court's opinions can substantially impact the broader evolution of law, public policy, and public opinion for years to come (e.g., [Hall 2011]; [Spriggs and Hansford 2000]; [Ura 2014]; [Wahlbeck 1997]). As such, the critical outcome of a Supreme Court controversy is not the disposition of the case (i.e., who wins and who loses), but rather the content of the Court's opinion (see, for example, [Clark and Lauderdale 2010]; [Maltzman, Spriggs, and Wahlbeck 2000]; [Owens and Wedeking 2011]; [Rice 2012]). Because the Court is a multimember institution, justices must bargain among themselves over opinion content. Which justices tend to prevail in this bargaining process and control the content of the Supreme Court's majority opinion?
Previous studies advance competing theories of Supreme Court bargaining. Various scholars argue that the median justice on the Court ([Epstein and Knight 1998]; [Martin, Quinn, and Epstein 2005]; [Murphy 1964]), the median justice in the majority coalition ([Carrubba et al. 2012]; [Clark and Lauderdale 2010]), and the author of the majority opinion ([Bonneau et al. 2007]) exert primary influence over content. These studies provide invaluable insight into the bargaining process. However, they all implicitly rely on an important and possibly flawed assumption: they assume that the same justice exerts primary influence over all of the content in the majority opinion. Yet, Supreme Court opinions include several different components, and these components might be controlled by different justices.
We suggest a novel theory of divided opinion control . We argue that control over the content of majority opinions on the U.S. Supreme Court is often divided between different justices. Specifically, we distinguish between which justice controls the holding and which justice controls the dicta. The holding is the Court's determination of a legal rule necessary to resolve the case. The holding, at least theoretically, binds lower courts and the Supreme Court in the future. In contrast, a dictum is a superfluous statement that lacks any formal precedential value. Nonetheless, dicta can have important implications for the future interpretation and creation of legal doctrine. We argue that holding and dicta comprise two separate components of the majority opinion, and different justices...