458
Opinion of Stevens, J.
or procedural will be a sound surrogate for the conclusion that would follow from a more discursive pre-emption analysis. The distinction between substance and procedure will, however, sometimes be obscure. As to those close cases, how a given rule is characterized for purposes of determining whether federal maritime law pre-empts state law will turn on whether the state rule unduly interferes with the federal interest in maintaining the free flow of maritime commerce.
Justice Stevens, concurring in part and concurring in the judgment.
It is common ground in the debate between the Court and Justice Kennedy that language from the majority opinion in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), correctly defines this Court's power to prevent state tribunals from applying state laws in admiralty cases. See ante, at 447, post, at 463. In my view, Jensen is just as untrustworthy a guide in an admiralty case today as Lochner v. New York, 198 U. S. 45 (1905), would be in a case under the Due Process Clause.
In the Jensen case, five Members of this Court concluded that the State of New York did not have the authority to award compensation to an injured longshoreman because application of the state remedy would interfere with the "proper harmony and uniformity" of admiralty law. 244 U. S., at 216. Justice Holmes' dissenting opinion in Jensen, no less eloquent than his famous dissent in Lochner, scarcely needs embellishment. See 244 U. S., at 218-223.1 None-1 The central theme of Holmes' dissent was that nothing in the Constitution or in the Judiciary Act's grant of jurisdiction over admiralty cases to the district courts prevented New York from supplementing the "very limited body of customs and ordinances of the sea" with its statutory workers' compensation remedy. Southern Pacific Co. v. Jensen, 244 U. S. 205, 220 (1917). Holmes' Jensen dissent was the source of his famous observations that "judges do and must legislate, but they can do so only inter-stitially," id., at 221, and that "[t]he common law is not a brooding omni-
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