e a supplemental brief on the matter after oral argument. Although I concede that what the majority did is technically permissible, see U.S. Nat'! Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ("When an issue or claim is properly before the court