>>3942650 (last)

Raising such an issue as anything other than the main point of a case, seems an invitation for one of two things to happen:

(1) SCOTUS to deny certiorari and thus avoid the whole issue.

(2) SCOTUS to make a narrow ruling avoiding this issue.

Otherwise we'd see a lot of new issues coming up unexpectedly during the appeals process (which is not supposed to happen and is explicitly not the purpose of appeals), I would think.