708
Blackmun, J., concurring in judgment
102, 108 (1980). The Court apparently discovers in the history of the diversity statute and this Court's own case law a clearly expressed intention contrary to the words of the statute. First, the Court observes that the diversity statute formerly extended only to "all suits of a civil nature at common law or in equity" rather than to "all civil actions." Ante, at 698. Then the Court interprets this Court's decision in Barber v. Barber, 21 How. 582 (1859), to read into this "common law or equity" limitation an exclusion of matters, such as actions for divorce and alimony, that were not cognizable in the English courts of common law and equity. Ante, at 698-699. The Court points to what it regards as Congress' "apparent acceptance" of this construction of the diversity statute. Ante, at 700. Finally, notwithstanding Congress' replacement in 1948 of the "common law and equity" limitation with the phrase "all civil actions," the Court considers this to be evidence that Congress adopted the prior "well-known construction" of the diversity statute. Ibid.
I have great difficulty with the Court's approach. Starting at the most obvious point, I do not see how a language change that, if anything, expands the jurisdictional scope of the statute can be said to constitute evidence of approval of a prior narrow construction.1 Any inaction on the part of Congress in 1948 in failing expressly to mention domestic relations matters in the diversity statute reflects the fact, as is discussed below, that Congress likely had no idea until the
1 To be sure, this modification in language was part of a wholesale revision of the Judicial Code in 1948, and this Court has recognized that "no changes of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed." Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957); see Finley v. United States, 490 U. S. 545, 554 (1989). This principle may negate an inference that the change in language expanded the scope of the statute, but it does not affirmatively authorize an inference that Congress' recodification was designed to approve of prior constructions of the statute.
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