146
Souter, J., dissenting
is no reason why we cannot take the questions as they come to us; assuming the validity of the District Court's basic remedial concept, we can determine the significance of test scores and assess the salary orders in relation to that concept.
Of course, as we understand necessity in prudential matters like this, it comes in degrees, and I would not deny that sometimes differing judgments are possible about the need to go beyond a question as originally accepted. But this is not even arguably such a case. It is instead a case that presents powerful reasons to confine discussion to the questions taken.2
Quite naturally, the respondents here chose not to devote any significant attention to a question not raised, and they presumably had no reason to designate for printing those portions of the record bearing on an issue not apparently before us. And while respondents seemingly gave some thought to the bare possibility that the Court would choose
2 Justice O'Connor suggests that I am saying something inconsistent with the position I took in Bray v. Alexandria Women's Health Clinic, 506 U. S. 263 (1993), see ante, at 105, but her claim rests on a misunderstanding of my position in that case. I did not think that in Bray we could reach the question whether respondents' claims fell within the "prevention clause" of 42 U. S. C. § 1985(3) simply because the question " 'was briefed, albeit sparingly, by the parties prior to the first oral argument.' " Ante, at 105. Rather, I said that "[t]he applicability of the prevention clause is fairly included within the questions presented, especially as restated by respondents . . . ." Bray, supra, at 290 (Souter, J., concurring in judgment in part and dissenting in part). Thus the question was literally before us (as Justice O'Connor believes the foundational question is before us under the second of the State's questions). What is not debatable is that Bray was not preceded by prior litigation indicating we would not consider the "prevention clause" issue, whereas this case was preceded by a refusal to take the very foundational issue that Justice O'Connor argues is within the literal terms of the second question focusing on salaries. See supra, at 143-144. I obviously thought the Court was wrong to reject supplemental briefing on the prevention clause, but that rejection was a far cry from refusing to take the issue.
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