SUPREME COURT OF THE UNITED STATES

No. 94–1175

BANK ONE CHICAGO, N. A., PETITIONER v. MIDWEST BANK & TRUST COMPANY

on writ of certiorari to the united states court of appeals for the seventh circuit

[January 17, 1996]

Justice Stevens, concurring.

Given the fact that the Expedited Funds Availability Act was a measure that easily passed both houses of Congress, Justice Scalia is quite right that it is unlikely that more than a handful of legislators were aware of the Act's drafting history. He is quite wrong, however, to conclude from that observation that the drafting history is not useful to conscientious and disinterested judges trying to understand the statute's meaning.

Legislators, like other busy people, often depend on the judgment of trusted colleagues when discharging their official responsibilities. If a statute such as the Funds Availability Act has bipartisan support and has been carefully considered by committees familiar with the subject matter, Representatives and Senators may appropriately rely on the views of the committee members in casting their votes. In such circumstances, since most members are content to endorse the views of the responsible committees, the intent of those involved in

the drafting process is properly regarded as the intent of the entire Congress.

In this case, as the Court and Justice Scalia agree, ante, at 9, post, at 5, the statutory text of §4010 supports petitioner's construction of the Act. However, the placement of the authorization for interbank litigation in subsection (f) rather than subsection (a) lends some support to the Court of Appeals' interpretation. When Congress creates a cause of action, the provisions describing the new substantive rights and liabilities typically precede the provisions describing enforcement procedures; subsection (f) does not conform to this pattern. The drafting history, however, provides a completely satisfactory explanation for this apparent anomaly in the text.

Justice Scalia nevertheless views the Court's reference to this history as unwise. As he correctly notes, the simultaneous removal of the provision for interbank liability from subsection (a) and the addition of a new subsection (f) support another inference favoring the Court of Appeals' construction of the statute: that the drafters intended to relegate the resolution of interbank disputes to a different tribunal. Justice Scalia is mistaken, however, in believing that this inference provides the "most plausible explanation" for the change, post, at 4. In my judgment the Court has correctly concluded that the most logical explanation for the change is a decision to consolidate the aspects of §4010 that relate to interbank disputes—liability limits and rulemaking authority—in the same subsection. Ante, at 9. Thus, the net result of the inquiry into drafting history is to find the answer to an otherwise puzzling aspect of the statutory text.

I must also take exception to Justice Scalia's psychoanalysis of judges who examine legislative history when construing statutes. He confidently asserts that we use such history as a make-weight after reaching a conclusion on the basis of other factors. I have been performing this type of work for more than 25 years and have never proceeded in the manner Justice Scalia suggests. It is quite true that I have often formed a tentative opinion about the meaning of a statute and thereafter examined the statute's drafting history to see whether the history supported my provisional conclusion or provided a basis for revising it. In my judgment, a reference to history in the Court's opinion in such a case cannot properly be described as a "make-weight." That the history could have altered my opinion is evidenced by the fact that there are significant cases, such as Green v. Bock Laundry Machine Co., 490 U. S. 504 (1989), in which the study of history did alter my original analysis. In any event, I see no reason why conscientious judges should not feel free to examine all public records that may shed light on the meaning of a statute.

Finally, I would like to suggest that Justice Scalia may be guilty of the transgression that he ascribes to the Court. He has confidently asserted that the legislative history in this case and in Wisconsin Public Intervenor v. Mortier, 501 U. S. 597 (1991), supports a result opposite to that reached by the Court. While I do not wish to reargue the Mortier case, I will say that I remain convinced that a disinterested study of the entire legislative history supports the conclusion reached by the eight-member majority of the Court. Even if his analysis in both cases is plausible, it is possible that Justice Scalia's review of the history in Mortier and in this case may have been influenced by his zealous opposition to any reliance on legislative history in any case. In this case, as in Mortier, his opinion is a fine example of the work product of a brilliant advocate. It is the Court's opinion, however, that best sets forth the reasons for reversing the judgment of the Court of Appeals.

Justice Breyer has authorized me to say that he agrees with the foregoing views.