“in effect backing the terrorists against their victims”? Four of the smartest bloggers out there — Megan McArdle, Mark Kleiman, Kevin Drum, and Eugene Volokh — are discusing the merits of the NARAL ad.
Kleiman writes:
But one of the defendants in the earlier case [Bray] was in fact a previously convicted clinic-bomber, and the amicus was filed in support of Operation Rescue, hardly a peaceful protest movement. (Three years after the brief was filed, a civil jury in Chicago found that Operation Rescue was a racketeering enterprise, in a case that is once again making its way up to the Supreme Court.)
Eugene Volokh points out that the Court,
by 6-3, upheld the position in the brief, and argues that therefore the brief can’t be said to have been outside the mainstream of legal thinking. Fair enough.But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. . . .
If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.
By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts and the rest of the Bush I crew was in effect backing the terrorists against their victims. That’s not “excusing” violence, but it’s not exactly opposing, either.
The obvious irony here has not been noted. Kleiman points to NOW v. Scheidler, a case that I did some pro bono work on a few years ago for NOW. It involved the use of violence (including allegedly bombing) to block clinics, women, and doctors from doing or having abortions. Although NOW won its first round in the US Supreme Court, it lost its second round (2003), and a third round is now pending.
If I read the commentators correctly, unlike the Bray case for which Roberts was attacked, NOW v. Scheidler explicitly involved violence and bombing, which Kleiman correctly terms terrorism. Nor were the justices in the Scheidler case acting as lawyers for their client (as Roberts was); they were acting as judges interpreting federal statutes in light of the Constitution.
In the 2003 Scheidler case (8-1 against NOW), how did the two Clinton appointees vote? Both Justice Ginsburg and Justice Breyer voted against NOW and in favor of those who were found by a jury to have been responsible for violence. If one were to use Mark Kleiman’s inflamatory characterization to describe their actions, both Ginsburg and Breyer were “in effect backing the terrorists against their victims.”
If you read Justice Ginsburg’s concurrence in Scheidler (joined by Justice Breyer), you see much the same sort of argument about RICO and the Hobbs Act that Roberts made in Bray about the scope of the Civil Rights Act. Here is the entirety of Justice Ginsburg’s 2003 concurrence in NOW v. Scheidler:
I join the Court’s opinion, persuaded that the Seventh Circuit’s decision accords undue breadth to the Racketeer Influenced and Corrupt Organizations Act (RICO or Act). As Justice Stevens recognizes, “Congress has enacted specific legislation responsive to the concerns that gave rise to these cases.” Post, at 6 (dissenting opinion). In the Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248, Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. See ante, at 9-10, and n. 9 (noting petitioners’ acknowledgment that at least some of the protesters’ conduct was criminal, and observing that “[t]he crime of coercion [a separate, and lesser offense than extortion] more accurately describes the nature of petitioners’ actions”). Thus, the principal effect of a decision against petitioners here would have been on other cases pursued under RICO.**
RICO, which empowers both prosecutors and private enforcers, imposes severe criminal penalties and hefty civil liability on those engaged in conduct within the Act’s compass. See, e.g., §1963(a) (up to 20 years’ imprisonment and wide-ranging forfeiture for a single criminal violation); §1964(a) (broad civil injunctive relief); §1964(c) (treble damages and attorneys’ fees for private plaintiffs). It has already “evolv[ed] into something quite different from the original conception of its enactors,” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 500 (1985), warranting “concern[s] over the consequences of an unbridled reading of the statute,” id., at 481. The Court is rightly reluctant, as I see it, to extend RICO’s domain further by endorsing the expansive definition of “extortion” adopted by the Seventh Circuit.
The lone dissenter was Justice Stevens. And, no, I don’t think that the 8-1 Supreme Court was right on this one for reasons too technical to explain here.
The problem with an ad like NARAL’s goes much deeper than any factual twisting. Many lawyers and judges really do believe that their political preferences are foreclosed by statutes or by the Constitution — perhaps not all the time, but often. My own speculation is that Ginsburg and Breyer were motivated both by a respect for law in this case and by a desire to discourage RICO suits against other legitimate protests. Also, one might argue that the very success of NOW’s lawsuit in the 1990s had significantly decreased clinic bombings and violence, ironically reducing the need for a big damage judgment to stop the terrorism that had been occurring years before.
Let me brutally clear: I think it would be offensive to tie Ginsburg and Breyer to abortion clinic bombers based on their votes and opinion in Scheidler, just as I think it is offensive to tie Roberts to abortion clinic bombers based on the government’s brief in Bray (especially since Roberts was acting for a client and Bray was not as clearly limited to violence as Scheidler is).
UPDATE: In brief, to explain my legal view of the 2003 opinions in NOW v. Scheidler: Even if the Court was right that the scope of Hobbs Act extortion is limited to obtaining money or ordinary property (the Court’s holding here is certainly defensible), the Court completely botched a crucial issue that it barely mentioned. The Hobbs Act was not the only basis of NOW’s suit; the RICO claims were also based on the Travel Act, which had been held by the Court to invoke state law definitions of blackmail and extortion, whatever they are called by the various states. These state extortion statutes punish compelling action as well as obtaining property. Accordingly (contrary to my memory of the NOW v. Scheidler majority’s holding), federal RICO extortion should not be limited to obtaining property, even though the federal Hobbs Act may be.
2d UPDATE: Mark Kleiman responds thoughtfully here.
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