A weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it’s 50/50 whether Defendant’s copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought it was 50/50 whether the copying was fair use—and the coin landed tails.
Coin-flip cases are rare, but uncertainty is not. There are more sophisticated tools for responding rationally when the judge’s doubts about what she ought to do are not in complete equipoise. And so, the point remains: when a judge is uncertain about what she ought to do and is rational in pursuit of that aim, the actual reason for her decision and the ratio decidendi will diverge. And unlike much of the literature arguing we cannot take opinions at face value, the phenomenon I describe arises from anti-cynical premises: a judge who aims at what is right.
I call the judge’s actual reasoning “Super-Dicta.” Super-Dicta is so-called because it is super important: it is directly necessary to the decision—and not just causally, but as part of a judge’s rationale. But even though it is the decisive reasoning, it would appear to have the status of dicta: whether expressed, or not, Super-Dicta is not purely objective, limited to law or facts. It encompasses the judge’s subjective reasoning based on her uncertainty. That is, it is reasoning that resolves a case that is hard for the judge, not just hard.
Should Super-Dicta appear in an opinion? That normative question is probably moot, at least if understood as one of substantive jurisprudence. While a coin flip may be rational, disclosing it is not. Accordingly, a judge responding rationally to uncertainty will not disclose that in her opinion. And if she tries, the resulting legal standard would turn on an odd consideration: facts about the judge, namely, that she is uncertain and the extent of her doubts. The result: judicial opinions—at least those by mere mortals—can be transparent or objective, but not both. So-called “hard case” doctrines must be revisited in this light.