120
O'Connor, J., dissenting
Court now permanently binds itself to its every unexamined assumption or inattention. Any rule that creates a grave risk that we might resolve important issues of national concern sub silentio, without thought or consideration, cannot be a wise one.
This case demonstrates the danger of such a rule. The question of retroactivity was never briefed in Davis. It had not been passed upon by the court below. And it was not within the question presented. Indeed, at oral argument we signaled that we would not pass upon the retroactivity of the rule Davis would announce. After conceding that the Michigan Department of Taxation would give Davis himself a refund if he prevailed, counsel for the department argued that it would be unfair to require Michigan to provide re-funds to the 24,000 taxpayers who were not before the Court. The following colloquy ensued:
"[Court]: So why do we have to answer that at all? "[Michigan]: —if, if this Court issues an opinion stating that the current Michigan classification is unconstitutional or in violation of the statute, there are these 24,000 taxpayers out there.
. . . . . "[Court]: But that's not—it's not here, is it? Is that question here?
"[Michigan]: It is not specifically raised, no." Tr. of Oral Arg., O. T. 1988, No. 87-1020, pp. 37-38.
Now, however, the Court holds that the question was implicitly before us and that, even though the Davis opinion does not even discuss the question of retroactivity, it resolved the issue conclusively and irretrievably.
If Davis somehow did decide that its rule was to be retroactive, it was by chance and not by design. The absence of briefing, argument, or even mention of the question belies any suggestion that the issue was given thoughtful consideration. Even the author of the Davis opinion refuses to ac-
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