Cite as: 533 U. S. 656 (2001)
Breyer, J., dissenting
accuracy); Sawyer v. Smith, 497 U. S. 227, 242-244 (1990) (holding that rule which "provid[ed] an additional measure of protection" to existing prohibition on prosecutorial remarks that render a proceeding "fundamentally unfair" was not "an 'absolute prerequisite to fundamental fairness' " that would fall within the second Teague exception) (quoting Teague, supra, at 314 (plurality opinion)).
Nor does the majority explain why the reasoning that was necessary to our holding in Sullivan (and is therefore binding upon all courts) lacks enough legal force to "make" the Cage rule retroactive. Cf. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 67 (1996) ("We adhere . . . not to mere obiter dicta, but rather to the well-established rationale upon which the Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound"); Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 613, n. 2 (1990) (plurality opinion) (exclusive basis for judgment is not dicta). In any event, technical issues about what constitutes a "holding" are beside the point. The statutory provision before us does not use the words "holding" or "held." But cf. ante, at 664 (majority opinion) (stating without explanation that "made" means "held"). It uses the word "made." It refers to instances in which the Supreme Court has "made" a rule of law "retroactive to cases on collateral review." 28 U. S. C. § 2244(b)(2)(A) (1994 ed., Supp. V) (emphasis added). And that is just what the Supreme Court, through Teague and Sullivan, has done with respect to the rule of Cage.
I agree with Justice O'Connor—as does a majority of the Court—when (in describing a different Teague exception) she says that "[w]hen the Court holds as a new rule in a subsequent case that a particular species of primary, private individual conduct is beyond the power of the criminal law-making authority to proscribe, it necessarily follows that this Court has 'made' that new rule retroactive to cases on collateral review." Ante, at 669 (concurring opinion). But I do
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