REPOST: A Clever Catch By Professor Rosenkranz

Over at VC, Nicholas Quinn Rosenkranz observes that Justice Breyer snuck in a "gratuitous citation" to Missouri v. Holland in his opinion for the Court in Noel Canning. Slip op. at 41. I think this was a very clever catch. Professor Rosenkranz wonders at the reason for the citation, which comes conspicuously on the heels of the Court's narrow decision in Bond v. United States (in which the Court sidestepped the question whether Holland should be overturned). Rosenkranz write:

Is Justice Breyer quoting Missouri v. Holland to signal that, in his view, Holland does and should remain good law? Is he worried that its days may be numbered? Is he testing to see whether Justice Kennedy would balk at the cite?

If I were a Justice who wished to preserve Holland’s validity going forward, I’d be sure to cite it as many times as possible. That way, when the next candidate for overruling it comes along, the Solicitor General will be able to write: “Indeed, this Court has continually relied on Holland, and has cited it in X number of recent opinions.”