Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
(1985).25 Although the Court in each of these cases failed to find abrogation for lack of a clear statement of congressional intent, the assumption that such power was available would hardly have been permissible if, at that time, today's majority's view of the law had been firmly established. It is one thing, after all, to avoid an open constitutional question by assuming an answer and rejecting the claim on another ground; it is quite another to avoid a settled rationale (an emphatically settled one if the majority is to be taken seriously) only to reach an issue of statutory construction that the Court would otherwise not have to decide. Even worse, the Court could not have been unaware that its decision of cases like Hoffman and Welch, on the ground that the statutes at issue lacked a plain statement of intent to abrogate, would invite Congress to attempt abrogation in statutes like the Indian Gaming Regulatory Act, 25 U. S. C. § 2701 et seq. (IGRA). Such a course would have been wholly irresponsible if, as the majority now claims, the constitutionally unalterable nature of Hans immunity had been well established for a hundred years.
Hans itself recognized that an "observation [in a prior case that] was unnecessary to the decision, and in that sense extra judicial . . . ought not to outweigh" present reasoning that points to a different conclusion. 134 U. S., at 20. That is good advice, which Members of today's majority have been willing to heed on other occasions. See, e. g., Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379 (1994) ("It is to the holdings of our cases, rather than their dicta, that we
25 In Hoffman, one Member of the four-Justice plurality expressly disa-vowed the plurality's assumption that Congress could abrogate the States' immunity by making its intent to do so clear. See 492 U. S., at 105 (O'Connor, J., concurring). The four dissenters, however, not only assumed that Congress had the power to abrogate but found that it had done so. See id., at 106 (Marshall, J., dissenting). Likewise, in Welch, the four-Justice plurality was joined by four dissenters who insisted upon a congressional power of abrogation. See 483 U. S., at 519 (Brennan, J., dissenting).
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