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Sam Heldman


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Tuesday, December 03, 2002
No. 01-1118 Scheidler v. NOW

No. 01-1119 Operation Rescue v. NOW

Here we have an abortion case that has nothing to do with abortion. At least, that is the way I predict that it will be decided. This case has apparently been in litigation for 15 years and has already been to the Supreme Court once. Basically, the National Organization for Women sued abortion protestors under RICO, seeking to enjoin them from pursuing illegal forms of protest, like blocking clinics, destroying property and extortion.

After the Supreme Court held that an organization could violate RICO even if its illegal activities were not conducted for financial gain, the case was tried. The plaintiffs won monetary damages and a nationwide injunction prohibiting defendants from engaging in the illegal activities they had pursued.

This appeal raises two questions: First, whether private litigants may seek an injunction under RICO, and second, whether the Hobbs Act’s prohibition on extortion is violated by wrongful use of force to obtain control over a business. The Seventh Circuit held that injunctive relief was available, and that defendants’ conduct could be considered extortion under the Hobbs Act. Interestingly, the Findlaw docket entry for this case also contains an opinion by Judge Posner, taking what some would consider an undeserved swipe at amicus briefs.

The first question basically boils down to whether the Ninth Circuit was right when it held that private litigants could not seek injunctive relief under RICO in Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986). Judge Wood’s opinion in this case makes it clear that the Ninth Circuit was seriously misguided when it issued that opinion. I urge you to read the statutory interpretation section of the opinion. It is really quite good.

As for the second question, I can’t seem to find any argument as to why the Hobbs Act’s definition of extortion shouldn’t include the acts of the defendants, other than the (as always) biased statement of the question:

    Whether the Hobbs Act, which makes it a crime to obstruct, delay, or affect interstate commerce “by robbery or extortion” and which defines “extortion” as “the obtaining of property from another, with [the owner’s] consent,” where such consent is “induced by the wrongful use of actual or threatened force, violence, or fear” (18 U.S.C. § 1951(b)(2) (emphasis added)) criminalizes the activities of political protesters who engage in sit-ins and demonstrations that obstruct the public’s access to a business’s premises and interfere with the freedom of putative customers to obtain services offered there.

Well, that’s all well and good, but we’re talking about more than sit-ins here. I see no reason why the Court would not AFFIRM the lower Court’s ruling on this issue. Even the Solicitor General agrees with NOW on this issue (though it disagrees with the Seventh Circuit on the injunction issue).

Oh and in case you missed it, the prediction on the first question was also AFFIRM.

The reason that this case is not an abortion case can be seen from the other amicus on Findlaw: PETA filed a brief in support of the abortion protestors. Although their basic viewpoints are remarkably similar, it is unusual to see these two groups on the same side of any issue.