GARY DAVENPORT, et al., PETITIONERS

05–1589 v.

WASHINGTON EDUCATION ASSOCIATION

WASHINGTON, PETITIONER

05–1657 v.

WASHINGTON EDUCATION ASSOCIATION

on writs of certiorari to the supreme court ofwashington

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Justice Breyer, with whom The Chief Justice and Justice Alito join, concurring in part and concurring in the judgment.

I agree with the Court that the Supreme Court of Washington’s decision rested entirely on flawed interpretations of this Court’s agency-fee cases and our decision in Boy Scouts of America v. Dale, 530 U. S. 640 (2000) . I therefore concur in the Court’s judgment, and I join Parts I and II–A and the second paragraph of n. 2 of the Court’s opinion. However, I do not join Part II–B, which addresses numerous arguments that respondent Washington Education Association raised for the first time in its briefs before this Court. See, e.g., State ex rel. Washington State Public Disclosure Comm’n v. Washington Ed. Assn., 156 Wash. 2d 543, 565, n. 6, 130 P. 3d 352, 362, n. 6, (2006) (en banc) (noting that one of these arguments was neither raised nor addressed below). I would not address those arguments until the lower courts have been given the opportunity to address them. See, e.g., National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 469–470 (1999) .