278
Stevens, J., concurring
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 "makeweight." 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.2 It is the Court's opinion,
2 Justice Jackson, whose opinion in United States v. Public Util. Comm'n of Cal., 345 U. S. 295 (1953), Justice Scalia cites, was also a brilliant advocate. Like Justice Scalia, he recognized the danger of indiscriminate use of legislative history, but unlike Justice Scalia he also recognized that it can be helpful in appropriate cases. See Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 395-396 (1951).
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