Gaffney, Edward, Jr., Commonweal
On the first Monday in October, the Supreme Court opened its new term. As with any shift in the Court's personnel, the retirement of Justice Byron White and the appointment of Justice Ruth Bader Ginsburg to replace him has Court watchers off and running looking for clever things to say about her. Each detail of her decisions will undoubtedly come under the intense (which is not always to say careful) scrutiny of the pundits, in order to place her conveniently into a facile category that will enable them to predict the outcome of the Court's docket.
Sometimes the pundits draw conclusions larger than the facts warrant. For example, as an advocate many years ago Ginsburg successfully litigated several equal-protection cases dealing with gender discrimination before the Court on which she now sits. It should be perfectly obvious from this and other things known about Justice Ginsburg that she will be sensitive to women's issues. But it does not necessarily follow, as Time magazine reports (October 4, 1993), that she will cast a decisive vote in National Organization of Women, Inc. v. Scheidler, to hold that the Racketeer-Influenced Corrupt Organizations Act (RICO) may be applied to Operation Rescue for its repeated acts of civil disobedience at abortion clinics.
One does not have to agree with Operation Rescue tactics in order to reach the conclusion that the Rico law should not be expanded to sweep in the activities that Operation Rescue followers engage in. For example, I wrote a brief amicus curiae on behalf of several organizations that engage in social activism relating to animal rights - including People for the Ethical Treatment of Animals and Feminists for Animal Rights - opposing the broad reading of Rico that the National Organization of Women (NOW) has urged the Court to adopt in this case.
This brief adopts no position on the underlying issue of abortion in the Scheidler case. Some members and supporters of these organizations strongly support broad freedom of choice for women who seek abortion, and some strongly support unborn human life as at least equal in dignity to the lives of all the animals, large and small (from whales to sea lion pups), that they seek to protect.
If abortion is not the meeting ground for these activists, what is? The answer is the fear that allowing federal courts to apply the stiff sanctions of the Rico law to acts of civil disobedience such as those engaged in by Operation Rescue could have disastrous consequences for civil liberties in this country.
To do so, say these organizations, would constitute an unwarranted excursion into political and social advocacy and dissent not targeted by Congress when it enacted the Rico statute. It would have a strong chilling effect on activists who would be willing to engage in acts of civil disobedience if they might otherwise bring only minor sanctions in state courts, but who would rightly think twice about violating the federal Rico statute. Social dissent, including civil disobedience, plays such an important role in shaping our society that the judiciary should not expand Rico to apply to such activity without a clear mandate from Congress to do so.
It is not that acts of civil disobedience go unpunished. On the contrary, dissenters in our republic (from the abolitionists to the suffragists to the Vietnam War protesters) have usually suffered swift and certain penalties for their conduct. But our system of federalism dictates that when the acts of civil disobedience constitute offenses under state law, federal courts should be wary of construing federal laws as the appropriate vehicle for imposing sanctions. …