Cite as: 504 U. S. 36 (1992)
Stevens, J., dissenting
change in the rule. We have never suggested that the fact that a court has repeated a settled proposition of law and applied it, without objection, in the case at hand provides a sufficient basis for our review.5 See Illinois v. Gates, 462 U. S. 213, 222-223 (1983), and cases cited therein. If this is to be the rule in the future, it will either provide a basis for a significant expansion of our discretionary docket 6 or, if applied only to benefit repetitive litigants, a special privilege for the Federal Government.
This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty. For that
5 The Court expresses an inability to understand the difference between the routine application, without objection, of a settled rule, on the one hand, and the decision of an open question on a ground not argued by the parties, on the other. The difference is best explained in light of the basic assumption that the adversary process provides the best method of arriving at correct decisions. Rules of appellate practice generally require that an issue be actually raised and debated by the parties if it is to be preserved. In the exceptional case, in which an appellate court announces a new rule that had not been debated by the parties, our review may be appropriate to give the losing party an opportunity it would not otherwise have to challenge the rule. In this case, however, there is no reason why the Government could not have challenged the Page rule in this case in the Tenth Circuit. There is no need for an exception to preserve the losing litigant's opportunity to be heard. Moreover, the Government's failure to object to the application of the Page rule deprived the Court of Appeals of an opportunity to reexamine the validity of that rule in the light of intervening developments in the law. "Sandbagging" is just as improper in an appellate court as in a trial court.
6 The "expressed or passed on" predicate for the exercise of our jurisdiction is of special importance in determining our power to review state-court judgments. If the Court's newly announced view that the routine application of a settled rule satisfies the "passed on" requirement in a federal case, I see no reason why it should not also satisfy the same requirement in a state case.
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