554
Thomas, J., concurring in judgment
maritime activity." The majority decides that the activity is repair work by a vessel on a navigable waterway. But, as the petitioners rightly argue, the "activity" very well could be bridge repair or pile driving. One simply cannot tell due to the ambiguities intrinsic to Sisson and to the uncertainty as to the meaning of levels of generality. The majority's response implicitly acknowledges the vagueness inherent in Sisson: "Although there is inevitably some play in the joints in selecting the right level of generality when applying the Sisson test, the inevitable imprecision is not an excuse for whimsy." Ante, at 542. The Court cannot provide much guidance to district courts as to the correct level of generality; instead, it can only say that any level is probably sufficient so long as it does not lead to "whimsy." When it comes to these issues, I prefer a clearer rule, which this Court has demanded with respect to federal question or diversity jurisdiction. Indeed, the "play in the joints" and "imprecision" that the Court finds "inevitable" easily could be avoided by returning to the test that prevailed before Foremost. In its effort to create an elegant, general test that could include all maritime torts, Sisson has only disrupted what was once a simple inquiry.
II
It should be apparent that this Court does not owe Sisson the benefit of stare decisis. As shown above, Sisson and Foremost themselves overextended Executive Jet and deviated from a long tradition of admiralty jurisprudence. More importantly, the new test of Sisson and Foremost did not produce greater clarity or simplicity in exchange for departing from a century of undisturbed practice. Instead, as discussed earlier, the two cases have produced only confusion and disarray in the lower courts and in this Court as well. It would seem that in the area of federal subject-matter jurisdiction, vagueness and ambiguity are grounds enough to revisit an unworkable prior decision.
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