118
O'Connor, J., dissenting
these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund." Id., at 817 (quoted in part, ante, at 98). According to the majority, that sentence constitutes " 'consideration of remedial issues' " and therefore " 'necessarily' " indicates that we applied the rule in Davis retroactively to the parties before us. Ante, at 98 (quoting James B. Beam, supra, at 539 (opinion of Souter, J.)). Ironically, respondent and its amici draw precisely the opposite conclusion from the same sentence. According to them, the fact that Michigan conceded that it would offer relief meant that we had no reason to decide the question of retroactivity in Davis. Michigan was willing to provide relief whether or not relief was required. The Court simply accepted that offer and preserved the retroactivity question for another day.
One might very well debate the meaning of the single sentence on which everyone relies. But the debate is as meaningless as it is indeterminate. In Brecht v. Abrahamson, 507 U. S. 619 (1993), we reaffirmed our longstanding rule that, if a decision does not "squarely addres[s] [an] issue," this Court remains "free to address [it] on the merits" at a later date. Id., at 631. Accord, United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) (issue not "raised in briefs or argument nor discussed in the opinion of the Court" cannot be taken as "a binding precedent on th[e] point"); Webster v. Fall, 266 U. S. 507, 511 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not considered as having been so decided as to constitute precedents"). The rule can be traced back to some of the earliest of this Court's decisions. See statement of Marshall, C. J., as reported in the arguments of counsel in United States v. More, 3 Cranch 159, 172 (1805) ("No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case"). Regardless of
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