Cite as: 508 U. S. 286 (1993)
Thomas, J., dissenting
I
I agree with the Court's description of its mission as an "attempt to infer how the 1934 Congress would have addressed the issue had the 10b-5 action been included as an express provision in the 1934 Act." Ante, at 294. However, I do disagree with the Court's chosen method for pursuing this difficult quest. The words of § 10(b) and Rule 10b-5 scarcely "suggest that either Congress in 1934 or the Securities and Exchange Commission in 1942 foreordained" the existence of a private 10b-5 action. Blue Chip Stamps, 421 U. S., at 737. Despite our conceded inability "to divine from the language of § 10(b) the express 'intent of Congress,' " ibid., we acquiesced in the lower courts' consensus that an implied right of action existed under § 10(b) and Rule 10b-5. Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9 (1971); Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 150-154 (1972). See Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946). Such acquiescence was "entirely consistent" with J. I. Case Co. v. Borak, 377 U. S. 426 (1964), which may have suggested a relatively permissive approach to the recognition of implied rights of action.3 Blue Chip Stamps, supra, at 730. Although we later "decline[d] to read [Borak] so broadly that virtually every provision of the securities Acts gives rise to an implied private cause of action," Touche Ross & Co. v. Redington, 442 U. S. 560, 577 (1979), we never repudiated the 10b-5 action.
We again have no cause to reconsider whether the 10b-5 action should have been recognized at all. In summarizing its rationale, the Court states: "Having made no attempt to define the precise contours of the private cause of action under § 10(b), Congress had no occasion to address how to
3 In Borak, we recognized a private party's right "to bring suit for violation of § 14(a) of the [1934] Act" even though "Congress made no specific reference to a private right of action in § 14(a)." 377 U. S., at 430-431.
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