Page:United States Reports 502 OCT. TERM 1991.pdf/631

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

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

473

Thomas, J., dissenting

In abandoning the zone-of-interests test, the Court abandons our chosen means of giving expression, in the field of constitutional litigation, to the principle that “the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing.” Associated General Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 536 (1983). The “zone-of-interests” test performs the same role as many other judge-made rules circumscribing the availability of damages in tort and contract litigation—doctrines such as foreseeability and proximate cause, see, e. g., Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928); directness of injury, see, e. g., Associated General Contractors, supra, at 540–541; the limitation on suits by third-party beneficiaries of contracts, see, e. g., Restatement (Second) of Contracts § 302(1) (1981); and the contemporaneous ownership rule governing shareholders’ derivative actions, see, e. g., Fed. Rule Civ. Proc. 23.1. When courts abolish such limitations and require, as our opinion does today, nothing more than a showing of de facto causality, exposure to liability becomes immeasurable and the scope of litigation endless. If today’s decision is adhered to, we can expect a sharp increase in state against state Commerce Clause suits; and if its rejection of the zone-of-interests test is applied logically, we can expect a sharp increase in all constitutional litigation. Of the three points I have discussed in the three portions of this opinion, I must believe that the first is the crucial one: the Court’s reluctance, in an original action, to reconsider our initial denial of a motion to dismiss for lack of standing. I shall consider that to be an essential part of the holding of the case. I respectfully dissent. Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting. Even if I believed that Wyoming had standing to challenge the Oklahoma statute (which, for the reasons given by Jus-