The Court's "Notice and Comment" Order in Zubik

Marty is the resident expert on this case, but I want to point out that the Supreme Court's request for supplemental issued yesterday is very strange.  The order reads more like a proposed rule of an administrative agency, both in its specificity and in the way that it gives interested parties (though in this instance only the parties of record) time to offer their thoughts before a final decision is taken.

I don't see why this case is different from any other where the Court ends up using a legal theory that was not briefed or argued.  In every decision of that sort, should the parties be given an opportunity to file supplemental briefs commenting on the idea before the opinion issues? Maybe that procedure will lead to better decisions, but if so it should be used consistently from now on.