Cite as: 511 U. S. 244 (1994)
Scalia, J., concurring in judgments
II
The Court's opinion begins with an evaluation of petitioner's argument that the text of the statute dictates its retroactive application. The Court's rejection of that argument cannot be as forceful as it ought, so long as it insists upon compromising the clarity of the ancient and constant assumption that legislation is prospective, by attributing a comparable pedigree to the nouveau Bradley presumption in favor of applying the law in effect at the time of decision. See Bradley v. School Bd. of Richmond, 416 U. S. 696, 711-716 (1974). As I have demonstrated elsewhere and need not repeat here, Bradley and Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), simply misread our precedents and invented an utterly new and erroneous rule. See generally Bonjorno, supra, at 840 (Scalia, J., concurring).
Besides embellishing the pedigree of the Bradley-Thorpe presumption, the Court goes out of its way to reaffirm the holdings of those cases. I see nothing to be gained by overruling them, but neither do I think the indefensible should needlessly be defended. And Thorpe, at least, is really indefensible. The regulation at issue there required that "before instituting an eviction proceeding local housing authorities . . . should inform the tenant . . . of the reasons for the eviction . . . ." Thorpe, supra, at 272, and n. 8 (emphasis added). The Court imposed that requirement on an eviction proceeding instituted 18 months before the regulation issued. That application was plainly retroactive and was wrong. The result in Bradley presents a closer question; application of an attorney's fees provision to ongoing litigation is arguably not retroactive. If it were retroactive, however, it would surely not be saved (as the Court suggests) by the existence of another theory under which attorney's fees might have been discretionarily awarded, see ante, at 277-278.
language" supporting liability); id., at 30 (Scalia, J., concurring in part and dissenting in part). There is nothing comparable here.
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