42
Opinion of the Court
state of evolving definition and uncertainty, and one of importance to the administration of federal law." Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1099, n. 8 (1991) (citations omitted; internal quotation marks
omitted).
(Justice Stevens' separate concurrence and dissent in Virginia Bankshares also reached the merits. Id., at 1110- 1112.) 2 As Justice O'Connor has written:
"The standard we previously have employed is that we will not review a question not pressed or passed on by the courts below. Here, the Court of Appeals expressly ruled on the question, in an appropriate exercise of its
2 The dissent purports to distinguish Stevens and Virginia Bankshares on the ground that, "[a]lthough the parties may not have raised the questions presented in the petitions . . . before the Courts of Appeals in those cases, the courts treated the questions as open questions that they needed to resolve in order to decide the cases." Post, at 58, n. 4. The significance of this distinction completely eludes us. While there is much to be said for a rule (to which the Court has never adhered) limiting review to questions pressed by the litigants below, the rule implicitly proposed by the dissent—under which issues not pressed, but nevertheless passed upon, may be reviewed only if the court below thought the issue an "open" one—makes no sense except as a device to distinguish Stevens and Virginia Bankshares. It does nothing to further "the adversary process" that is the object of the dissent's concern, post, at 59, n. 5; if a question is not disputed by the parties, "the adversary process" is compromised whether the court thinks the question open or not. Indeed, if anything, it is compromised more when the lower court believes it is confronting a question of first impression, for it is in those circumstances that the need for an adversary presentation is most acute.
The dissent observes that where a court disposes of a case on the basis of 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." Ibid. That is true enough, but the suggestion that this principle has something to do with Stevens and Virginia Bankshares is wholly unfounded: In neither case could—or did—the losing party claim to have been ambushed by the lower court's summary treatment of the undisputed issues which we later subjected to plenary review.
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