Cite as: 504 U. S. 689 (1992)
Blackmun, J., concurring in judgment
Court's decision today that the diversity statute contained an exception for domestic relations matters.
This leads to my primary concern: the Court's conclusion that Congress understood Barber as an interpretation of the diversity statute. Barber did not express any intent to construe the diversity statute—clearly, Barber "cited no authority and did not discuss the foundation for its announcement" disclaiming jurisdiction over divorce and alimony matters. Ante, at 694. As the Court puts it, it may only be "inferred" that the basis for declining jurisdiction was the diversity statute. Ante, at 699. It is inferred not from anything in the Barber majority opinion. Rather, it is inferred from the comments of a dissenting Justice and the absence of rebuttal by the Barber majority. Ante, at 699.2 The Court today has a difficult enough time arriving at this unlikely interpretation of the Barber decision. I cannot imagine that Congress ever assembled this construction on its own.
In any event, at least three subsequent decisions of this Court seriously undermine any inference that Barber's recognition of a domestic relations "exception" traces to a "common law or equity" limitation of the diversity statute. In Simms v. Simms, 175 U. S. 162 (1899), the Court heard an appeal by a husband from the Supreme Court of the Territory of Arizona affirming the territorial District Court's dismissal of his bill for divorce and its award to his wife of alimony and counsel fees pendente lite. The wife sought dismissal of the appeal to this Court because the suit involved domestic relations. In contrast to Barber, the Court
2 Moreover, as the Court intimates, ante, at 699, and n. 4, there is good reason to question the Barber dissent's interpretation of English practice. The historical evidence, while not unequivocal, suggests that the English chancery courts did in fact exercise some jurisdiction over matrimonial matters. See, e. g., Lloyd v. Loeffler, 694 F. 2d 489, 491-492 (CA7 1982); Spindel v. Spindel, 283 F. Supp. 797, 802-803, 806-809 (EDNY 1968); Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 584-585 (1984).
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