38
Stevens, J., dissenting
set aside the rule "where reasons of urgency or of economy suggest the need to address the unpresented question." 503 U. S., at 535 (1992) (emphasis added). Judicial economy is not served by invoking prudential rules "after we have granted certiorari and the case has received plenary consideration on the merits. Our decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits of one or more of the questions presented in the petition." Oklahoma City v. Tuttle, 471 U. S. 808, 815-816 (1985) (emphasis in original). See also Canton v. Harris, 489 U. S. 378, 384 (1989). The Court recently used stronger language when it refused to dismiss a case on prudential grounds raised and rejected in the process of granting certiorari. The majority noted that the dissent
"proposes that—after briefing, argument, and full consideration of the issue by all the Justices of this Court— we now decline to entertain this petition for the same reason we originally rejected it, and that we dismiss it as improvidently granted. That would be improvident indeed. Our grant of certiorari was entirely in accord with our traditional practice, though even if it were not it would be imprudent (since there is no doubt that we have jurisdiction to entertain the case) to reverse course at this late stage." United States v. Williams, 504 U. S. 36, 40 (1992).8
8 The majority notes that Williams concerned a different prudential rule—the one which precludes review of an issue that " 'was not pressed or passed upon below' "—but fails to provide any reason why violation of that rule should be forgiven more easily than violation of Rule 14.1(a). Ante, at 34, n. 7. If anything, one might think that the Court should be more reluctant to waive the rule requiring presentation of the issue below, because it ensures the adequate development of the record and protects the Court from deciding questions that could have been resolved by the lower courts. In addition, although the majority claims that the rule was satisfied "because the issue there had been passed upon by the lower court," it fails to note that part of the reason the rule was deemed to be satisfied was that the party had raised and the Court of Appeals had de-
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007