Marbury v. Madison was the first case in which the Supreme Court asserted its powers of judicial review to strike down unconstitutional legislation. These powers have been the primary function of the Supreme Court throughout the history of the United States, and thus it makes sense that the case in which these powers were first asserted occurred very early in the country's history.

Remember that McCulloch v. Maryland is a fairly early case, as cases go (1819), and that it was before the Marshall Court, so it probably had to do with expanding or limiting federal power. The backdrop to McCulloch is extremely interesting, and I encourage you to read about it, as we’ll discuss it only briefly here. Essentially, the bank of the U.S. gets re-chartered (that is, legislatively renewed), and it is immensely unpopular. What made it even worse, from the anti-bank point of view, was that it had branches (offshoot banks) in different states! If you guessed the Maryland was one of those states, you are correct.

Maryland, being rather anti-bank in sentiment, attempted to figure out a way to get rid of the pesky new bank without resorting to the time-honored approach of torching it. The next best thing, Maryland figured, would be to tax the bank out of existence. So, in a (failed) attempt to be subtle, Maryland levies a 2% tax on all “foreign” banks (that is, banks NOT chartered in Maryland). Since the Bank of the U.S. was not technically chartered in Maryland, Maryland attempted to enforce their law, and collect the tax from the bank agent, McCulloch.

Unsurprisingly, McCulloch decided he’d rather not pay the tax, and the case ensued. Maryland argued that the Constitution did not explicitly grant to Congress the power to create a bank, thus they should not be able to. Marshall, writing for the court, explains that while the Constitution does not explicitly grant Congress the power to charter a bank, it is one of Congress’ inherent powers under the Necessary and Proper Clause. Furthermore, given that Congress can charter a bank, Maryland may not tax it as the “power to tax involves the power to destroy” and the state cannot destroy the federal government, under the Supremacy Clause.

This 2005 Supreme Court case concerned the issue of eminent domain, as the City of New London, Connecticut wanted to take private property in order to sell it to private property developers so that they could develop the land and in the process create jobs and bring in more tax money. Kelo, and other property owners, felt that the city’s seizure of property was not protected by the 5^th Amendment, which guarantees eminent domain, because the property was being taken for private citizens and businesses. The Supreme Court ruled 5-4 that the city could take the property, since selling it and developing it was designed to benefit everyone within the city and that purpose was protected under eminent domain.

Oberta Dicta is Latin for “by the way” (or thereabouts), and, legally speaking, it refers to remarks that are outside of the scope of the central holding of the opinion. This is somewhat nebulous and confusing, so an example would likely be of assistance.

Imagine there was a court case regarding a copyright infringement. Imagine further that the defendant raised two defenses: (1) that he didn’t copy the plaintiff’s work, and (2) that, if he did, his use was “fair use.” (You have absolutely no reason to know what “fair use” is, and you don’t need to—just keep reading!). Now, at the close of the case, the judge hands down a decision in favor of the defendant. Specifically, the judge finds that the defendant did not copy the plaintiff’s work (this would be the central holding). The judge, however, does not stop there—her decision tackles the defendant’s “fair use” defense. This is “oberta dictum” (singular—that is “um” rather than “a”—because it’s only one incident). Do you see why?

The reason, of course, is that the judge exceeded the bounds of the central holding. Because the judge already decided that the defendant did not copy the plaintiff’s work (defense number one), anything the judge decides regarding defense number two (“fair use”) is superfluous to the holding.

This should have been a relatively simple question, given the choices. The answer is “central holding.” The central holding of a case does two very important things: one, it hands down a verdict—that is, who won (and thus who lost); and two, it explains why. In an appellate (that is, “upper”) court, the “why” is important: it creates precedent for the lower courts to follow when confronting similar cases.

The two answers reading “concurrence” and “dissent” are correct. Remember: a majority decision does create binding precedent. At any rate, a concurrence and dissent, while neither create binding precedent, are two different kinds of animals, metaphorically speaking. A concurrence is by a judge (or justice) who agrees with the majority, however, wants to articulate additional reasons for signing on to the majority decision. A dissent is by a judge (or justice) who does not agree with the majority (and articulates reasons for doing so).