Man Without Qualities

Wednesday, February 26, 2003

That Old Pistol Whippin' Justice Stevens

The New York Times reports:

The Supreme Court ruled Wednesday that federal racketeering and extortion laws were improperly used to punish aggressive anti-abortion protesters, lifting a nationwide injunction that barred people from interfering with clinic business. The court's 8-1 ruling applies to protests of all sorts, not just at abortion clinics.

Upon reading that a Supreme Court ruling has come down 8-to-1, there is a strong momentary inclination to guess: who was the dissenter? Supreme Court Justices are unpredictable and the answer is often surprising - but here I was in no doubt from the instant I read the article lead. Justice Stevens dissented, of course.

Why was this obvious? Because the case under consideration essentially came down to whether federal racketeering and extortion laws could be used to pistol whip aggressive protesters. Yes, the actual Court opinion is much more esoteric:

We first address the question whether [the protestors'] actions constituted extortion in violation of the Hobbs Act. That Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U. S. C. §1951(b)(2). ... [The government and other parties opposing the protestors] asserted ... that [the protestors'] committed extortion under the Hobbs Act by using or threatening to use force, violence, or fear to cause [women seeking abortions] "to give up" property rights, namely, "a woman's right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear."

Now, whatever other irregularities may be committed by overly aggressive protestors obtaining property is not one of them. The attempt to stretch the meaning of "property" to include "a woman's right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear" is clearly improper in the context of a criminal statute. Such a construction would amount to a government pistol whipping of protestors of all stripes - and was seen in this light by 8 Justices.

This was not a case aligned on current political lines. The Court's decision had been sought by activists like actor Martin Sheen, animal rights groups and even some organizations that support abortion rights, all of whom argued that protesters of all types could face harsher penalties for demonstrating, if the court ruled otherwise.

So why is it so obvious that Justice Stevens would dissent from what should have been an easy case? Simply because Justice Stevens has long seen nothing wrong with government pistol whipping as a substitute for correct policy. For example, in his critique of antitrust policy, The Antitrust Paradox, Robert Bork lamented the attitude among some policymakers and practitioners that antitrust need have neither coherence nor an intellectual foundation: "Several hundred lawyers at a meeting of the Antitrust Section of the American Bar Association listened to a nationally prominent attorney, who subsequently became an Associate Justice of the Supreme Court, contend that it was fruitless to worry about antitrust's intellectual problems. Antitrust, the attorney said, is in the good old American tradition of the sheriff of a frontier town: he did not sift evidence, distinguish between suspects, and solve crimes, but merely walked down main street and every so often pistolwhipped a few people."

That "nationally prominent attorney, who subsequently became an Associate Justice of the Supreme Court" is Justice John Paul Stevens.

Is it true, as Justice Stevens insists that "The Court's murky opinion seems to hold that this phrase [the obtaining of property from another] covers nothing more than the acquisition of tangible property?" Of course not. And the Court goes out of ts way to point out that Justice Steven's misuse of precedent is dotty and that the Court is not attempting in this case to define exacly what "property" is for purposes of the extortion laws. But Justice Stevens is. Justice Stevens thinks that anything of "value" is "property," which is not the way those words are used. General political gain and having one's own candidate elected to office also have "value" - so demonstrators who support their candidates too aggressively commit "extortion" as far as Justice Stevens is concerned. And surely Justice Stevens must think that the vote of a member of Congress is "property" since such a vote has value at least on par with what he accepts as "intangible property." And if a vote is "property," then every member of Congress or an administrative agency must be both accepting and giving a criminal bribe every time the member trades his or her vote for the vote of another - since bribery surely includes (to Justice Stevens) taking "valuable property" in exchange for one's vote.

And it is nothing short of a disgrace that the Bush Administration defended the rejected construction of the law to the extent it did.


Above, I characterize Justice Stevens dissenting position as equating "property" with "things of value" (or, more exactly, "obtaining property" with "interference with things of value"). Justice Stevens does not expressly write that. He writes: "[T]he term "property" [has] an expansive construction that encompasses the intangible right to exercise exclusive control over the lawful use of business assets. ... The use of violence or threats of violence to persuade the owner of a business to surrender control of such an intangible right is an appropriation of control embraced by the term "obtaining."

That is: My description of what Justice Stevens is doing here is my conclusion, not his admission.

The majority opinion is based on its conclusion that the Hobbs Act did not apply in this case because, as the majority puts it, Petitioners neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. Justice Stevens objects to the restriction of the kind of "value" implied by the majority opinion (something they could exercise, transfer, or sell) and wants to reconstrue "obtaining" this generalized property to include "interference with" that property. He indicates no boundaries for his generalized "property" other than it must be a thing with "value" of some form (not just something one can exercise, transfer, or sell).

I submit that when his shell game stops, there is nowhere for his argument to go other than to include in "obtaining property" all acts of interference with activities valued by the persons conducting such activities.

Further, how often is it the case that a person voluntarilly engages in an activity that that person deems to have no value of any form? For legal purposes, never. So Justice Stevens' approach has nowhere to go than to include all acts of interference with any voluntary activity of another within the definition of "obtaining property" under the Hobbs Act. In my opinion, Justice Stevens should be writing for the Onion, not the Supreme Court.

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