712
Blackmun, J., concurring in judgment
Id., at 382-383 (quoting the Act of Mar. 3, 1911, ch. 231, 36 Stat. 1161, 1093). Rejecting this claim, Justice Holmes observed for a unanimous Court that the jurisdictional statutes "do not affect the present case if it be true as has been unquestioned for three-quarters of a century that the Courts of the United States have no jurisdiction over divorce." 280 U. S., at 383. The Court traced this absence of jurisdiction not to the diversity statute but apparently to the Constitution itself:
"If when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States, there is no difficulty in construing the instrument accordingly and not much in dealing with the statutes. 'Suits against consuls and vice-consuls' must be taken to refer to ordinary civil proceedings and not to include what formerly would have belonged to the ecclesiastical Courts." Id., at 383-384.
I think it implausible to believe that, especially after Popovici, Congress could be said to have accepted this Court's decision in Barber as simply a construction of the diversity statute.6 Accordingly, the Court is without a requisite foundation for ratifying what Congress intended. Cf. Flood v. Kuhn, 407 U. S. 258, 283-284 (1972) (declining to overturn
6 The Court claims that "by hearing appeals from legislative, or Article I, courts, this Court implicitly has made clear its understanding that the source of the constraint on jurisdiction from Barber was not Article III; otherwise the Court itself would have lacked jurisdiction over appeals from these legislative courts." Ante, at 696-697. The Court, however, overlooks the rule that "[w]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us." Hagans v. Lavine, 415 U. S. 528, 535, n. 5 (1974); see Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 119 (1984). This Court has never understood the rule differently. United States v. More, 3 Cranch 159, 172 (1805) (Marshall, C. J.) (statement at oral argument).
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007