148
Souter, J., dissenting
fornia, 347 U. S. 128, 129 (1954) (plurality opinion of Jackson, J.); and, second, how the Court's decision to go beyond those questions to address an issue not adequately briefed or argued by one set of parties leads it to render an opinion anchored in neither the findings and evidence contained in the record, nor in controlling precedent, which is squarely at odds with the Court's holding today.
II
A
The test-score question as it comes to us is one of word play, not substance. While the Court insists that the District Court's Order of June 17, 1992 (the only order relevant to the test-score question on review here), "requir[ed] the State to continue to fund the quality education programs because student achievement levels [in the KCMSD] were still 'at or below national norms at many grade levels' . . . ," ante, at 100; see also ante, at 73, that order contains no discussion at all of student achievement levels in the KCMSD in comparison to national norms, and in fact does not explicitly address the subject of partial unitary status. App. to Pet. for Cert. A-69 to A-75. The reference to test scores "at or below national norms" comes from an entirely different and subsequent order of the District Court (dated Apr. 16, 1993) which is not under review. Its language presumably would not have been quoted to us, if the Court of Appeals's opinion affirming the District Court's June 17, 1992, order had not canvassed subsequent orders and mentioned the District Court's finding of fact that the "KCMSD is still at or below national norms at many grade levels," 11 F. 3d 755, 762 (CA8 1994), citing Order of Apr. 16, 1993, App. to Pet. for Cert. A-130. In any event, what is important here is that none of the District Court's or Court of Appeals's opinions or orders requires a certain level of test scores before unitary status can be found, or indicates that test scores are the only thing standing between the State and a finding of uni-
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