The meaning of 8-1

Are you puzzled, as I am, over what lies behind any 8-1 ruling of the U.S. Supreme Court? A 5-4 decision on just about any subject, or even one that goes 6-3, makes sense, in that you understand that the justices were obviously dealing with some delicate issues and shaded nuances that might have gone either way. But when the court thunders forth with an 8-1 voice, observers might well ask: "How did a case that was this obvious land in the Supreme Court?"

So I was glad, after the court's announcement last week of its decision in National Organization for Women vs. Scheidler, to be able to consult my own expert. The briefest summary of the case that I can offer is that 17 years ago the very pro-abortion NOW got so irritated with the protests of pro-life activist Joe Scheidler and others that it began a case in which it would ask the courts to hit the protesters with a very big stick. Specifically, the case would subject the protesters' activities to the federal Racketeer Influenced and Corrupt Organizations Act (RICO), a law designed for use against mobsters, not political protesters. The court's ruling last month places protesters generally beyond that law's reach.

My handy expert was my younger brother Tim, a St. Louis attorney who organized the original defense of the protesters 17 years ago. I asked him to help put the ruling in perspective.

Q. How did NOW drag this out so long, keeping the protesters tied up legally for 17 years?

A. Actually, the protesters have been subject to adverse court orders only since 1998, when the case went to trial. It had a 12-year-long pre-trial history, which included a full-blown trip to the Supreme Court in 1994, in which the Court reversed the lower courts and held that NOW could proceed with its case.

Q. So has the Supreme Court now reversed itself?

A. No. The issue before the court in 1994 was whether the protesters' lack of economic motivation-the fact that the protesters were looking for a social change, and not for financial benefit-was an acceptable defense to NOW's RICO claim. The Court said no. But in saying no in 1994, the Court specifically declined to rule on whether the RICO claim could proceed on an extortion theory.

When the case went back down, NOW proceeded on the extortion theory, and the district court in Chicago, as well as the 7th Circuit Court of Appeals, went along with NOW. But now the Supreme Court has said that without the protesters obtaining something, there was no extortion, and without extortion, there was no RICO case, and without RICO there was no case. So the issue before the Court in 2003 was actually different from the issue before the Court in 1994.

Q. How have Joe Scheidler and the other protesters managed to sustain a 17-year-long defense?

A. This case has outlived the involvement of any single attorney. Our own clients, who had earlier been arrested for trespassing and related crimes hundreds of times, were among those originally sued by NOW. But with the diligent assistance and guidance of our Chicago attorney, Tim Klenk, we were able to maneuver into a position where the courts dismissed the case against them-a dismissal sealed by the Supreme Court in 1993. But as we were going out, many others were being brought into the suit, including the Operation Rescue protesters. While there has been an uninterrupted and vigorous defense of the protesters, not one of the original defense attorneys in the case was still there at the end.

Q. What will be the practical effect of this? Will pro-lifers be energized to push the limits of the protest process? Or did the long duration of this appeal scare off the rank-and-file protesters?

A. First, this decision does allow the affected protesters to engage more freely in legal free-speech activities at abortion clinics. But since 1994, protesters have been subject to the federal Freedom of Access to Clinic Entrances Act (FACE), which Justice Ginsburg, joined by Justice Breyer, suggested was one of the reasons she was able to concur with the majority last week. That law forbids blockading doors, so I doubt there will be an increase in the massive sit-ins that were common in the 1980s.

Q. So are you saying the 8-1 decision wasn't quite the slam-dunk for the pro-life cause it first appeared, and that a couple of those votes were somewhat technical?

A. This was a victory for protesters generally, whether against abortion or something else. The Supreme Court's decision contributed nothing to the abortion debate; eight justices simply reached the common-sense conclusion that merely protesting does not make a person guilty of extortion. Usually the court accepts cases to resolve close issues on which lower courts disagree. But it is not completely uncommon for the court to take a case simply to correct a lower court that is just completely wrong. And sometimes the light bulb of common sense comes on only after a case has gone all the way to the Supreme Court.