58
Stevens, J., dissenting
and to hold that the prosecutor has no judicially enforceable duty to present exculpatory evidence to the grand jury. In his brief in opposition to the petition, respondent clearly pointed out that the question presented by the petition "was neither presented to nor addressed by the courts below." Brief in Opposition 2. He appropriately called our attention to many of the cases in which we have stated, repeated, and reiterated the general rule that precludes a grant of certiorari when the question presented was "not pressed or passed upon below." 3 Id., at 5-9. Apart from the fact that the United States is the petitioner, I see no reason for not following that salutary practice in this case.4 Nevertheless, the requisite number of Justices saw fit to grant the Solicitor General's petition. 502 U. S. 905 (1991).
The Court explains that the settled rule does not apply to the Government's certiorari petition in this case because the Government raised the same question three years earlier in the Page case and the Court of Appeals passed on the issue in that case. Ante, at 44-45. This is a novel, and unwise,
3 Duignan v. United States, 274 U. S. 195, 200 (1927); see also, e. g., United States v. Lovasco, 431 U. S. 783, 788, n. 7 (1977); United States v. Ortiz, 422 U. S. 891, 898 (1975). Until today the Court has never suggested that the fact that an argument was pressed by the litigant or passed on by the court of appeals in a different case would satisfy this requirement.
4 Stevens v. Department of Treasury, 500 U. S. 1 (1991), and Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083 (1991), discussed by the Court, ante, at 41-42, were routine applications of the settled rule. Although the parties may not have raised the questions presented in the petitions for certiorari 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. Similarly, in Springfield v. Kibbe, 480 U. S. 257 (1987), the Court of Appeals had expressly considered and answered the question that Justice O'Connor thought we should decide, see id., at 263-266. This case, in contrast, involved "the routine restatement and application of settled law by an appellate court," which we have previously found insufficient to satisfy the "pressed or passed upon below" rule. Illinois v. Gates, 462 U. S. 213, 222-223 (1983).
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