Sunday, December 01, 2002

Supreme Court

Wed 12/4's first case is Operation Rescue v. NOW. The 7th Circuit's decision – affirming a judgment (including an injunction) against Operation Rescue's attempts to shut down clinics – is here. This is a good case to train your legal mind to ignore the fact that it's Operation Rescue we're talking about – if you love O.R., imagine that the group is one that you hate, and vice versa. It may help, in this, to know that PETA is on Operation Rescue's side as an amicus.

The case has been to the Supreme Court before on another set of questions, and now it's back with two questions (in my paraphrase): (1) Can a private plaintiff get an injunction under the RICO Act, or does the right to seek an injunction under that statute belong only to the Attorney General? (2) Does "extortion" of "property" under the Hobbs Act include an attempt (by force, violence, or fear) to shut down someone's business for political reasons – or is it limited to attempts to "obtain" property in a more traditional sense of "gimme that property, I want it"? The Seventh Circuit said "yes, private plaintiffs can get an injunction; and yes, this stuff constitutes extortion."

The Government, as amicus, agrees with Operation Rescue that private plaintiffs can't get an injunction under RICO, but can only get an award of monetary damages. This position strikes me as clearly wrong, based on the reasons that the Seventh Circuit gave. The government and Operation Rescue do have one pretty good argument on this point, though, based on an analogy to the antitrust laws. A rather boring argument, but a pretty good one – not good enough to convince me, but maybe good enough to convince others.

The Government is against Operation Rescue on the other question, saying that these acts do constitute extortion within the meaning of the Hobbs Act. I've got serious qualms about that, both as a matter of statutory language (long story short, extortion is the "obtaining" of property by wrongful means, and I think that even if the right to run a business is "property," if your goal is to destroy rather than to take over the business, that doesn't constitute "obtaining" under any definition of the word that I'm familiar with) and as a matter of policy (remember: what can be done to Operation Rescue this time can be done to an organization I agree with next time, if a prosecutor comes to believe that the organization authorized acts of violence to shut down a business).

I'm going to say REVERSE without saying on which question the Court will reverse; in my Supreme Court prediction game, "reverse in part" constitutes a reversal so I can win without calling my shots. Both the U.S. and I think that the Court should reverse on one of the questions, though we differ as to which one. We can't both be wrong, can we?

posted by sam 3:04 PM 0 comments

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