Cite as: 532 U. S. 598 (2001)
Scalia, J., concurring
"[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs . . . ." Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884).
"Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, § 2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . . "Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . ." The Baltimore, 8 Wall. 377, 388, 390 (1869).
The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that "[t]he party prevailing in the suit shall be entitled to costs against the adverse party." Act of Mar. 2, 1867, ch. 176, § 24, 14 Stat. 528. See also Act of Mar. 3, 1887, ch. 359, § 15, 24 Stat. 508 ("If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue"). A computer search shows that the term "prevailing party" appears at least 70 times in the current United States Code; it is no stranger to the law.
At the time 42 U. S. C. § 1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of "prevailing party" or under the common-law rule—the "catalyst theory" was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the "catalyst theory" was not expressed)
611
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