Antonin Scalia

“ We quoted Bradley's acknowledgment that there was an exception to its presumption for retroactive application that " 'would infringe upon or deprive a person of a right that had matured or become unconditional,' " ibid., quoting from 416 U.S., at 720, 94 S.Ct., at 2020, and noted that this "comports with another venerable rule of statutory interpretation, i.e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect." ”

“ It is a rule that we have applied with consistency. By this I do not mean that we have applied it mechanically. As with all choice-of-law rules, the Bradley rule requires evaluation of the implicated interests. Thus we cautioned in Bradley that neither that decision nor prior ones purported "to hold that courts must always thus apply new laws to pending cases in the absence of clear legislative direction to the contrary," 416 U.S., at 715, 94 S.Ct., at 2018, and we discussed at length the conditions that might counsel against application of a new statute to a pending case. ”

“ But putting aside for the moment whether expectations about interest liability can ever settle before the end of litigation, I still do not understand why we should not apply new § 1961 to litigation in progress when we know that the principal reason for Congress' amendment of § 1961 was to change the risk of postjudgment litigation. The decision to appeal is not irrevocable. ”

“ As I have mentioned, Thorpe derived from Schooner Peggy the "general rule . . . that an appellate court must apply the law in effect at the time it renders its decision." 393 U.S., at 281, 89 S.Ct., at 526. Of course it does not stand for that at all-or at least not in the sense that Thorpe implied. It stands for the proposition that when Congress plainly says-contrary to the ordinary presumption which courts will "struggle hard" to apply-that current law rather than the pre-existing law governs the rights of parties, then courts "must apply" that current law. ”

“ Precedent aside, however, even as an original matter there is nothing to be said for a presumption of retroactivity-neither in the narrow context of "cases pending" or "cases on appeal" nor (a fortiori ) in the logically compelled broader context of all cases. It is contrary to fundamental notions of justice, and thus contrary to realistic assessment of probable legislative intent. The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal. ”

“ The majority overlooks the crucial point that Kaiser's liability for postjudgment interest could not be settled until the judgment against Kaiser became final. Until the end of litigation, a defendant must always evaluate the possibility that a judgment against it, and concomitantly the postjudgment interest that it must pay, may be vacated, decreased, or increased on appeal, in postjudgment proceedings before the District Court, or by a legislated change in the substantive law. ”

“ The difficulty is, however, that it is quite impossible to apply the traditional presumption in "enactment-before-adjudication" cases and the Thorpe-Bradley presumption in "enactment-after-adjudication" cases, as a moment's reflection will make plain. This would mean nonsuiting the plaintiff who has won a tort judgment that is on appeal when the statute abolishing the tort is enacted, while rendering judgment in favor of plaintiffs who sue later for preenactment torts. It would be irrational to produce these results. ”

“ Arguably it would not be giving retroactive effect to a new statutory interest rate for judgments if one applied that rate to all outstanding balances on judgments, with respect to all periods of time after the statute's effective date-regardless of when the judgments were rendered. It depends upon what one considers to be the determinative event by which retroactivity or prospectivity is to be calculated. If it is the entry of judgment, then only judgments rendered after the effective date will be covered by prospective application ”

“ Furthermore, unlike the right to wages for services rendered, the right to postjudgment interest does not "vest" in discrete amounts as each day passes. The amount of postjudgment interest that a party will recover (or be required to pay) can never be known with certainty until the amount of the underlying judgment is known with certainty, and that amount in turn cannot be definitively ascertained until the process of appeal is completed. Indeed, Bonjorno's right to postjudgment interest would have evaporated had the Court of Appeals reversed its judgment against Kaiser. ”

“ As a result of the Court's decision today, Bonjorno is remitted to a postjudgment interest rate greatly lower than its cost of money during the pendency of the litigation, while Kaiser, an adjudicated violator of the antitrust laws, is permitted to escape the consequences of protracting litigation. This was precisely the result that Congress intended to prevent by amending § 1961.
I agree with the majority that the plain language of § 1961 compels us to conclude that postjudgment interest runs from the date of the entry of judgment, not the date of a jury verdict. Ante, at 835. ”

“ It is significant that not a single one of the earlier cases cited in Thorpe and Bradley-except, of course, the cases dealing with judicial decisions rather than statutes and the case dealing with repeal of a criminal statute-even purports to be applying a presumption of retroactivity. They purport to be following the express command of the statute, or not to be acting retroactively at all. ”

“ Where it is claimed that a law is to have a retrospective operation, such must be clearly the intention, evidenced in the law and its purposes, or the court will presume that the lawmaking power is acting for the future only and not for the past. ”

“ It is at least arguable that it does not constitute retroactive application to apply a provision dealing with the award of costs or fees in litigation to all litigation that has not yet terminated when the provision takes effect. But the reason I say that Bradley perhaps expanded the confusion of Thorpe is that its formulation of the governing principle was arguably more farreaching. ”

“ There are certain principles which have been adhered to with great strictness by the courts in relation to the construction of statutes as to whether they are or are not retroactive in their effect. The presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other. ”

“ Further, reorganization proceedings involving the transferor had closed before the Chandler Act became effective. In concluding that Congress intended the Chandler Act to apply only to reorganization proceedings pending on its effective date, the Court stressed that the Commissioner's construction would make the Chandler Act actually retroactive, in that it would require recalculation of definitely settled tax liabilities for past years. "Congress was not uprooting the whole tax past of reorganized debtors and their creditors." ”

“ It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import ”

“ There respondent had been overassessed on federal income and profits taxes. At the time it requested a refund of its overpayment and at the time the refund was allowed by the Commissioner, the relevant statute provided that interest on the amount was "to commence six months after the filing of claim for refund," id., 276 U.S., at 161, 48 S.Ct., at 236, unless the taxes had been paid under protest. Before the refund was made, however, Congress amended the statute to provide that interest should run from the actual date of the overpayment. ”

“ Application of amended § 1961 here does not require "altering the past legal consequences of past actions." Bowen, supra, 488 U.S., at 219, 109 S.Ct., at 477 (SCALIA, J., concurring) .
What is even more important for present purposes is that in Claridge Apartments the Court also rejected the Tax Court's view that the Chandler Act did not apply to all tax years at issue in any reorganization proceedings pending at the statute's enactment, but only to 1938 and later tax years. Remarking that "the whole problem . . . ”