Denniston's summary of the case, which he calls a "titanic struggle in the sidewalk wars over abortion," is very helpful in some respects, but disappointing in others. On the positive side, he states that while most public and judicial attention has focused on the use of RICO against abortion protesters, "there now lurks in the case a major issue of criminal law," which concerns the scope of the federal Hobbs Act. He points out that if this "broadening" of that Act were to prevail, then "it could make the Hobbs Act -- a law enacted in 1946 to curb labor-management racketeering -- into a sweeping federal anti-violence law." The problem with this issue, he notes, is that "at this stage...the 7th Circuit's latest ruling...stressed that it was not deciding that issue, and noted that that question could disappear after the new round in District Court."
Still, Denniston says that the high Court could "hear part of the case without getting to that issue itself, if it confined its review to clarifying the scope of its 2003 ruling [which] may well be the decisive issue as the Justices on Thursday ponder a grant or denial of review." What's disappointing about this blog post, however, is that Denniston goes on to quote the 7th Circuit's ruling [PDF] while ignoring the critical wording of the Supreme Court when it ruled over two years ago in Scheidler's favor, in an opinion by Chief Justice Rhenquist, by such a decisive (8-1) margin. Then the high Court held that "all" of the predicate acts supporting the jury verdict against the defendants under RICO "must be reversed." Further, it held that without any underlying predicate acts the judgment that the Scheidler defendants violated RICO also "must be reversed." And finally, the Chief Justice wrote for himself and seven other Justices (all but Stevens, J. who dissented) that without an underlying RICO judgment, the nationwide injunction granted against the named defendants and all other protesters in concert with them "must necessarily be vacated." Despite these unambiguous commands -- three "musts" reinforced by the powerful adverb, "necessarily" -- the 7th Circuit panel held that four of the hundred-plus predicate acts found by the jurors after the 1998 trial were unaffected by the high Court's ruling. The panel also directed the trial court to consider whether to enter another, more narrowly tailored RICO injunction against Scheidler, et al.
Thus when the Supreme Court said "all," the 7th Circuit panel held that the Justices only meant that "some" predicate acts must be reversed. When the Chief Justice wrote "must," the lower court panel held that this only meant that "maybe" the RICO judgment against Scheidler had to be reversed. And when the Justices ruled that the RICO injunction "necessarily" had to be vacated, the 3-Judge appellate panel took that to mean that vacating the decree was only "possibly" required. Indeed, NOW's contention before the 7th Circuit panel and in opposing Supreme Court review [PDF] that violent predicate acts were not before the high Court on the prior appeal is plainly spurious. References to allegedly "violent" protest activities were all too frequent in both the briefing and oral argument [PDF] of the earlier appeal (which this blogger had the privilege of attending). As Scheidler's reply brief [PDF] points out, belated claims by NOW and the abortion clinic respondents that the "four acts or threats of physical violence against persons or property" found by the jury were not before the high Court are belied by the respondents' own excessive rhetoric in briefing and arguing that appeal. NOW did its very best to depict all of the petitioners' protest activities in the worst possible light, describing peaceable non-violent sit-in's as violent mass assaults against physicians and abortion clinic patrons. Granted, the focus of NOW's theory of liability was that simply blocking access by sit-in's constituted "extortion," but their witnesses and lawyers went to great lengths to inject many references to "physical force" and "violence" into the record throughout the trial and on appeal as well. Thus there's every reason for guarded optimism that, despite the terrible odds against the Supreme Court granting review three times in the same case, some favorable action may be forthcoming next week.
Despite the 7th Circuit's rather transparent hedge that it was "not deciding" the Hobbs Act issue which the respondents were urging as an independent ground for upholding the four predicate acts that were allegedly unaffected by the prior ruling, the flimsiness of its reasoning in just deeming plausible such an expansive transformation of the Hobbs Act into "a sweeping federal anti-violence law" (while criticizing or ignoring the many powerful, really irrefutable arguments against such an interpretation of the Hobbs Act), by itself argues strongly in favor of some immediate, decisive intervention here. Coupled with that, of course, is the appellate panel's ignoring the plain and simple directions authored by the Chief Justice for such a decisive Supreme Court majority over two years ago. At any rate, failing Supreme Court intervention now, this marathon litigation will go on for still more years, perhaps into its third decade.
Also overlooked by Denniston is the third issue that the case presents for Supreme Court review, namely, whether the federal RICO statute authorizes issuance of any injunctive relief at the behest of private litigants such as NOW and the abortion clinic plaintiffs. On the earlier appeal, the high Court granted review of that issue but then stopped short of deciding it, as the Court held that the merits of the case didn't warrant the entry of any RICO injunction. That the 7th Circuit directed the trial court to consider entering another RICO injunction against Scheidler also flies in the face of this portion of the Supreme Court's 2003 decision. If, as NOW would have us believe, there remained predicated acts not addressed by the clear language of the Chief Justice (to the contrary), one really must wonder why the high Court would decline to address the injunction question in Scheidler II despite granting review of that issue?
If for no other reason than its treatment by SCOTUSBlog, How Appealing, and other great blogs, Scheidler III has likely achieved a high degree of visibility in upper regions of the federal legal system. It seems doubtful, then, that the case will now go away as quietly as NOW hoped it would. Indeed, NOW's brief in opposition argued that the 7th Circuit hadn't really decided anything and, therefore, that Supreme Court review would be premature. Premature?!? After 19 years of litigating and the specific directions for reversing the judgment and vacating the injunction that the Chief Justice wrote over two years ago in words as plain as the English language affords? Even back then, the end of this case was painfully overdue! As Valparaiso and Pepperdine Law School Prof. Ed Gaffney wrote in one amicus brief [PDF] filed in support of Scheidler's appeal:
This lawsuit has gone on for nearly two decades and makes the lawyers in Chancery described in Charles Dickens' Bleak House...look like models of efficiency as they wore down the estates of decedents through filing document after document.... [E]ndless litigation eats up the meager resources of people who espouse unpopular views. We now say respectfully to the Court, "Enough is enough." Grant the petitions...and summarily reverse the court of appeals.Prof. Gaffney also observed that the court of appeals had "held the case for a full year -- a long time to ponder a clear mandate -- and then took another year to rule on the petition for rehearing." And yet, after all that judicial deliberation, what finally emerged was "only a meek iffy supposition" that on remand the district court might find "it is not beyond the realm of possibility" that the revisers of the federal criminal code in 1948 "may have made certain substantive changes, either advertently or inadvertently" in the scope of the federal Hobbs Act. To this, Gaffney quoted Horace in Ars Poetica, to the effect that Parturient montes, et nascitur ridiculus mus. ("The mountains are in labor, and a ridiculous mouse is born.")
One very telling footnote in Prof. Gaffney's amicus brief voiced his observations about the author of the court of appeals panel's opinions, Judge Diane Wood:
The perception of dispassionate fairness in the disposition of this case by Judge Wood is blurred when one discovers that the same Circuit Judge who (1) authored the opinion that this court reversed 8-1 in 2003, (2) the unpublished order a year later in 2004 resuscitating the case, and (3) the published opinion this year denying the petition for rehearing has been throughout her judicial career a member of the Respondent National Organization for Women, or from the year 2000 to the present a member of the Chicago chapter of NOW....Gaffney cites Sullivan's Judicial Profiles: The Illinois Judicial Directory, but fails to note what a very reliable source tells this blogger: that Judge Woods is also affiliated with Planned Parenthood's Chicago chapter. Contrast these facts with the actions of Judge Ripple, who recused himself from the 7th Circuit's en banc panel simply because he is pro-life (and despite the fact that this case has implications far surpassing the pro-life movement).
In America's contemporary legal universe, only a case such as Scheidler v. NOW could have produced this bizarre series of zigs and zags, tracing such an erratic, aberrant trajectory over the space of two decades. Now it is time that this ill-conceived effort to enforce the federal antitrust, extortion, and racketeering laws against selfless, disinterested, and morally-inspired protesters be rebuffed and ended, once and for all. Perhaps we'll see the end of this marathon when the outcome of the June 16 conference is announced. Or perhaps we will be forced to recall the famous remark of Mr. Bumble in Oliver Twist, also quoted in a concurrence by Justice Blackmun in Estate of Wilson v. Aiken Indus., 439 U.S. 877, 880 n.3 (1978).
UPDATE: NOW's president, Kim Gandy, has issued a response to this blog post. Read about it here.