This quote jumped out from Justice Sotomayor’s concurring opinion United States v. Tohono O’odham Nation. At issue was the interpretation of 28 U.S.C. s 1500, a statute that prescribes the jurisdiction of the Court of Federal Claims. The Supreme Court 7-1 reversed the Federal Circuit, finding that if a suits filed in District Court and in the Court of Federal Claims are “based on substantially the same operative facts, regardless of the relief sought in each suit.” the suit in CFC is precluded. Sotomayor, joined by Breyer, concurred in judgment only, finding the majority’s opinion was too cramped. Kagan recused.

I am somewhat confused by this passage, particularly the tenses:

Even before today’s decision, §1500 had been described as “anachronistic,” Keene, 508 U. S., at 217, “harsh,” id., at 222 (Stevens, J., dissenting), and “arbitrar[y],” 79 Fed. Cl.645, 659, n. 16 (2007). Judges and commentators have long called for congressional attention to the statute. See, e.g., Keene, 508 U. S., at 222 (Stevens, J., dissenting); Schwartz, supra, at 601. Today’s decision—which unnecessarily considers and repudiates the Casman rule— renders such attention all the more pressing. Under the Court’s construction of §1500, plaintiffs whom Congress has forced to file parallel actions in the CFC and a district court to obtain complete relief must now choose either toforgo relief in the district court or to file first in the districtcourt and risk the expiration of the statute of limitationson their claims in the CFC. I cannot agree that Congress intended, or intends, for §1500 to produce this result. For these reasons, I respectfully concur only in the judgment.

I get the part about what Congress intended (past tense). Sotomayor spends a number of pages in Breyer-esque glory parsing the extensive legislative history of this statute. Fine. But what is this bit about what Congress intends (present tense).

28 U.S.C. s 1500 was enacted in 1868! What possible role could the Congress in 2011 (present tense) have in creating the intent of a statute enacted after the Civil War. No one who was alive in 1868 is alive today. This suggests that modern Congresses have a role to not only interpret old laws, but for their intent and purposes behind such interpretations to have legitimacy. I think this mistakes what a law is. This was duly enacted in 1868. If judges want to look to the legislative history from the good ‘ol Congressional Globe, more power to them. But what difference does it make what Congress today intends? Considering 140 years of post-enactment legislative history seems to be stretching the limits a bit.

Sotomayor even notes that Judges and commentators have called on Congress to amend this statute. This request concedes that Congress (in the present) has actively decided not to modify this law. If anything, the intent of Congress (present tense) is to leave the statute as is. This would seem to bolster the majority’s opinion.

One observational note: this Soto-Breyer production reunites the dissenting duo from last week’s Sossamon v. Texas. Both opinions are heavy on legislative history and purpose, trademarks of Breyer’s opinion. We may see this pairing much more frequently.