Page:United States Reports 502 OCT. TERM 1991.pdf/621

 502US2$28K 02-10-99 15:12:54 PAGES OPINPGT

Cite as: 502 U. S. 437 (1992)

463

Scalia, J., dissenting

different from “law of the case,” which would give effect even to an erroneous decision, simply because it has already been made. And in the present case, we have not considered the standing issue thoroughly once before. We disposed of Oklahoma’s preliminary standing objections summarily, without oral argument and without opinion. I considered us to be deciding at that time, not, once and for all, that standing existed, but simply that the absence of standing was not so clear that our normal practice of permitting the suit to be filed and of referring all questions (including the standing question) to a special master should be short circuited. The parties apparently understood our action that way, since the standing issue was raised (without “law-of-the-case” objection from Wyoming) before the Special Master. And the Master certainly did not think that we had conclusively decided the point, since he received argument on it and discussed it as the very first of the “three legal issues that require a recommendation to the Court.” Report of Special Master 10. If the Special Master was not precluded by our prior action, it is hard to understand why we ourselves would be. There is no unfairness to Wyoming in this. To be sure, we might have given the standing question full-dress consideration to begin with, and, if we concluded in Oklahoma’s favor, could have spared the parties lengthy proceedings before the Special Master. But the same could be said of the substantive issue whether the Act violated the Commerce Clause. Our choice not to proceed in that fashion was both in accord with ordinary practice and in my view sound. Almost all other litigants must go through at least two other courts before their case receives our attention. It has become our practice in original-jurisdiction cases to require preliminary proceedings before a special master, to evaluate the facts and sharpen the issues. Wyoming has no cause for complaint that we did that here, and we should not distort