270
Scalia, J., dissenting
"expressly authorizes the bringing of that action in the federal or state courts," which "evinces the opinion of congress, that the right to sue does not imply a right to sue in the courts of the union, unless it be expressed." 5 Cranch, at 86. It is clear, I think, that the reason the Court thought the right to have been "expressed" under the directors-suit provision, but not "expressed" under the provision before it, was not that the former happened to mention courts "of the United States." For that would have provided no contrast to the argument against jurisdiction (italicized above) that the Court had just made. Reference to suits "in any court of record of the United States, or of either of them," is no less universal in its operative scope than reference to suits "in courts of record," and hence is subject to the same objection (to which the Court was presumably giving a contrasting example) that jurisdiction was indiscriminately conferred on all courts of original jurisdiction and for any and all amounts.
Deveaux establishes not, as the Court claims, the weird principle that mention of the federal courts in a "sue and be sued" clause confers jurisdiction; but rather, the quite different (and quite reasonable) proposition that mention of the federal courts in a provision allowing a particular cause of action to be brought does so. The contrast between the "sue and be sued" clause and the provision authorizing certain suits against the directors lay, not in the mere substitution of one broad phrase for another, but in the fact that the latter provision, by authorizing particular actions to be brought in federal court, could not reasonably be read not to confer jurisdiction. A provision merely conferring a general capacity to bring actions, however, cannot reasonably be read to confer jurisdiction.2
2 The Court believes that Deveaux's statement that "the right to sue does not imply the right to sue in the courts of the union unless it be expressed," Bank of United States v. Deveaux, 5 Cranch 61, 86 (1809) (emphasis added), is somehow inconsistent with my analysis. Ante, at
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