Cite as: 527 U. S. 373 (1999)
Opinion of Thomas, J.
sented—we might answer "no" to the question "[w]hether the Court of Appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt," 525 U. S. 809 (1998), by explaining that the Fifth Circuit was incorrect in holding that there was error. Without a doubt, the Government would have done better to call our attention to the fact that it planned to argue that the nonstatutory aggravating factors were valid at the petitioning stage. But it did not affirmatively concede that the nonstatutory aggravators were invalid, see Brief in Opposition 18-22, and absent such a concession, we think that the Government's argument is properly presented.12
12 The dissent would treat this aspect of the Government's argument as waived. Post, at 420-421, n. 24. As Justice Ginsburg explained, for a unanimous Court, in Caterpillar Inc. v. Lewis, 519 U. S. 61 (1996): "Under this Court's Rule 15.2, a nonjurisdictional argument not raised in a respondent's brief in opposition to a petition for a writ of certiorari 'may be deemed waived.' " Id., at 75, n. 13 (emphasis added). But we have not done so when the issue not raised in the brief in opposition was "predicate to an intelligent resolution of the question presented." Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation marks omitted); see also Caterpillar, 519 U. S., at 75, n. 13. In those instances, we have treated the issue not raised in opposition as fairly included within the question presented. This is certainly such a case. Assessing the error (including whether there was error at all) is essential to an intelligent resolution of whether any such error was harmless. Moreover, here, as in Caterpillar, "[t]he parties addressed the issue in their briefs and at oral argument." Ibid. By contrast, in the cases that the dissent looks to for support for its position, there were good reasons to decline to exercise our discretion. In Roberts v. Galen of Va., Inc., 525 U. S. 249, 253-254 (1999) (per curiam), the "claims [we declined to consider did] not appear to have been sufficiently developed below for us to assess them," and in South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999), the argument respondent raised for the first time in its merits brief was "so far-reaching an argument" that "[w]e would normally expect notice [of it]," especially when, unlike this case, the respondent's argument did not appear to have been raised or considered below.
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