Scheidler v. National Organization for Women, Inc. – Oral Argument – November 30, 2005

Media for Scheidler v. National Organization for Women, Inc.

Audio Transcription for Opinion Announcement – February 28, 2006 in Scheidler v. National Organization for Women, Inc.

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John G. Roberts, Jr.:

We’ll hear argument first today in Scheidler versus National Organization for Women, and Operation Rescue versus National Organization for Women.

Mr. Untereiner.

Alan Edward Untereiner:

Mr. Chief Justice, and may it please the Court–

In 2003, this Court, through all appearances, brought this case to an end by holding that all of predicate RICO counts found by the jury must be reversed, that the liability judgment must be reversed, and that the injunction must be vacated.

On remand, however, a panel of the Seventh Circuit found a way to keep this case alive.

It held that four of the 121 RICO predicates somehow survived this Court’s decision, and it strongly suggested that the Hobbs Act punishes acts or threats of physical violence that have no connection to either robbery or extortion.

Today, we are asking this Court to reverse the erroneous decision below and remand with very explicit instructions that judgment be entered in favor of Petitioners.

Reversal is warranted because of three separate legal errors made by the Seventh Circuit.

First, the lower court failed to obey the clear holdings and remand instructions of this Court.

Second, the Seventh Circuit erroneously held, in conflict with two other Circuits, that the Hobbs Act plausibly can be read to cover freestanding acts or threats of physical violence.

And, third, the Seventh Circuit erred in its previous decision, in 2001, in holding that the racketeering law, RICO, authorizes private injunctive relief.

Sandra Day O’Connor:

Counsel, if we were to agree with you on any one of the three questions, would that end the case?

Alan Edward Untereiner:

That’s correct, Justice O’Connor.

Because of what the Seventh Circuit also said, that a new trial is not in the cards and the damages verdict is gone and nothing more remains to be done except for the two issues that it outlined, that’s correct.

If the Court rules in our favor on any issue, the case is over.

Let me turn to our first point.

The Seventh Circuit’s decision is inconsistent with this Court’s previous holdings.

This Court’s 2003 opinion left no doubt that, quote, RICO predicates must be reversed.

But–

Ruth Bader Ginsburg:

Yes, but there was a theory that was put to the jury… and it’s right there on the special interrogatories… one category was violent acts that obstruct commerce with no connection at all to extortion.

That was there.

And I have a question about your characterization of what the Seventh Circuit did.

It was puzzled.

It says, “Extortion, they all go”.

But here are these four that don’t involve extortion, and there’s no ruling from the Court on those.

Was the Court supposed to assume that the Court made a question… decided a question of statutory interpretation by silence?

Alan Edward Untereiner:

–No.

No, Justice Ginsburg, but the argument was made in this Court, at the petition stage the last time around, that those four counts were, in fact, included in the petitions.

At that time, of course, there was no contrary authority.

The Yankowski opinion of the Ninth Circuit made clear, and I think the language of the Hobbs Act makes clear, that freestanding acts or threats of violence are not covered.

Alan Edward Untereiner:

So, we argued, at the petition stage, that those counts were covered.

And then, at the merits stage, the Petitioners asked this Court to reverse and remand for entry of judgment in our favor on all claims and all counts.

The Respondents, at that point, did not argue–

John Paul Stevens:

Was there any argument on the merits as to those four counts?

Alan Edward Untereiner:

–No, Justice Stevens.

John Paul Stevens:

No.

Yeah.

Is it conceivable that we overlooked that point?

Alan Edward Untereiner:

Well, we take the Court to mean what it… what it says.

John Paul Stevens:

But if I just… do you think it’s conceivable that we just didn’t realize those four points were at issue?

Alan Edward Untereiner:

I think it’s possible.

But if the Court did overlook those, I think that would have been something that should have been raised in a rehearing petition in this Court.

John Paul Stevens:

And do you think we resolved the statutory construction issue that you’re now arguing very carefully at this time?

Alan Edward Untereiner:

There’s no indication, in the court’s opinion, that it resolved it.

It may have assumed that we were right, because we made the argument at the–

John Paul Stevens:

They may assume it–

Alan Edward Untereiner:

–petition stage–

John Paul Stevens:

–but there’s nothing in the opinion to give any–

Alan Edward Untereiner:

–That’s correct.

That’s correct, Justice Stevens.

Sandra Day O’Connor:

If it’s possible, at least, that we just overlooked that aspect in the issuance of our opinion, would it be more helpful to move on to the other two questions at issue here, since they would be determinative?

It’s–

Alan Edward Untereiner:

I’d be happy to–

Sandra Day O’Connor:

–it’s disturbing to think that some court below deliberately was trying to defy what this Court said.

And I’m not sure there is any indication of that.

It may have thought that those issues… those other acts were overlooked, and, therefore, they had some right to deal with it.

But I wonder if we shouldn’t focus on the other two legal issues here.

Alan Edward Untereiner:

–I’d be happy to move on, Justice O’Connor, to those two issues.

Our second argument is that the Hobbs Act does not punish freestanding acts or threats of violence.

By “freestanding”, we mean unconnected to either robbery or extortion.

Alan Edward Untereiner:

And I think that’s apparent from the language of the Hobbs Act, which has three clauses.

And the third clause covers acts or threats of violence, quote,

“in furtherance of any plan or purpose to do anything in violation of this section. “

unquote.

So, there needs to be a connection.

There needs to be a violation of this section.

And our position is that that refers back to the principal offenses under section 1951, robbery or extortion.

Now, the Respondent’s position is that the mere act of obstructing commerce, or affecting commerce, or, I suppose, even delaying commerce, is a violation of the Hobbs Act.

And I don’t think it’s possible to read the statutory language that way.

So, we think that argument is clearly foreclosed.

Now, if there’s any doubt about that, based on the language of the Hobbs Act, as amended in 1948, one need only look back to the 1946 version of the Hobbs Act, as originally passed.

And there, it… there’s no debate that Congress intended to cover acts or threats of physical violence only if undertaken in furtherance of a plan or purpose to commit robbery or extortion.

So, Respondent’s position rises or falls on the proposition that in 1948, when Congress recodified and revised all of Title 18 of the U.S. Code, it dramatically expanded the Hobbs Act.

This Court, in reviewing revision and recodification statutes, applies special rules of construction.

It requires the clear statement… or clear expression of intent to make a substantive change; and, if there isn’t one, it assumes that no substantive change was intended.

If you look at the revisor’s notes to section 1951(a) in the 1948 revision, it’s clear that there is no intent to make any substantive change.

So, I think the Court really doesn’t need to go any further on that second issue to rule in the Petitioner’s favor.

Ruth Bader Ginsburg:

The question is whether the Court should rule on it, as in a matter of first decision.

We are a court of review.

There was no determination of whether the Hobbs Act included such a category in the Seventh Circuit.

So, the difficulty, the impediment to addressing your position is that however strong it may be, it wasn’t resolved below, so why shouldn’t we follow the natural order that first the District Court speaks, and then the Court of Appeals, and then it comes here?

Alan Edward Untereiner:

Justice Ginsburg, I understand the concern, but the Seventh Circuit did everything but resolve the issue.

It says it was resolving the issue, but it… at the same time, it said that it rejected our argument based on the rule of lenity.

It rejected our argument based on the over federalization of State crimes.

It said that both… it rejected our plain language argument.

It went on and on to reject all the same arguments we’re making in this Court.

So, I think if the case were remanded to the District Court–

Antonin Scalia:

Excuse me.

How could the… how could the Court of Appeals not have resolved this issue?

How could it possibly have rendered its judgment without resolving this issue?

Alan Edward Untereiner:

–Well, what the… what the Court–

Antonin Scalia:

Did you raise this issue below?

Alan Edward Untereiner:

–Yes, we did, Your Honor.

We raised it both in the… at the rehearing petitions in the Seventh Circuit and in the initial appeal.

It did resolve the issue, insofar as it held that the Hobbs Act may plausibly be read to cover freestanding acts for threats of violence.

And that holding is in conflict with the decision of the Ninth Circuit and the Sixth Circuit.

Antonin Scalia:

Excuse me.

Is that how we apply statutes, that if they may plausibly be read a certain way, that’s what they mean?

Alan Edward Untereiner:

Well, that is what the–

Antonin Scalia:

I don’t understand how that’s a resolution of the question.

Alan Edward Untereiner:

–The Seventh Circuit went out of its way to say it was not finally resolving the question.

But, Justice Scalia, it, again and again, went through our arguments and rejected them.

And then, at the end of its opinion, it said it would be better to read the statute at… take the statute at face value, and that, it suggests, was what Respondent’s position was.

So, I think it went as far as it possibly could to resolve the question and reject all of the arguments that are being made here.

So, I think it… to go back to the District Court, it would be a foregone conclusion, and it would just result in further delay.

This case has gone on for almost–

Anthony M. Kennedy:

Well, I’m with you–

Alan Edward Untereiner:

–20 years.

Anthony M. Kennedy:

–up to the point where you say it went as far as it possibly could.

As Justice Scalia indicates, why didn’t it say,

“This is the way the Act must be interpreted. “

period?

So, it didn’t go as far as… I’m just quibbling with your… I’m just quibbling with your statement that it went as far as it possibly could.

I don’t think it did.

That’s the problem.

Alan Edward Untereiner:

Well, yes, it did leave open the possibility that a court might come to the opposite conclusion.

But I think if you’re the District Court reading the opinion of the Seventh Circuit, I think it’s clear which way you’re going to have to come out.

Ruth Bader Ginsburg:

Why?

Anthony M. Kennedy:

We got you off of–

Ruth Bader Ginsburg:

Were you–

Anthony M. Kennedy:

–We got you off of your first point, but I’d like to just loop back to that for a minute, at this point.

Is this imprecision, this ambiguity, grounds for our reading… our insisting on reading our earlier remand and judgment literally and saying that there are no predicate acts… there are no predicate acts that support this judgment?

Alan Edward Untereiner:

Well–

Anthony M. Kennedy:

Do… is there some prudential argument for us not to reach this issue and just insist on the wording of our earlier mandate?

Alan Edward Untereiner:

–The Court could certainly come out that way on prudential grounds as a reason to avoid deciding a Hobbs Act issue.

But, in our view, the Hobbs Act question is a fairly easy and straightforward one.

And the Seventh Circuit’s opinion is going to create mischief if left untouched.

Ruth Bader Ginsburg:

–I’m concerned about your characterization, not only of suggesting that there was some attempt to force a particular decision, but I’m reading the Seventh Circuit’s remand to the District Court.

It went through your argument, which it said was a substantial one, that no change was intended in the codification.

And it said,

“While these revisions were intended to be formal stylistic changes, it is not beyond the realm of the possible that the revisors may have made certain substantive changes. “

That doesn’t sound like they were ruling on it definitively, but they were tipping their hand.

“Not beyond the realm of the possible. “

That was–

Alan Edward Untereiner:

The Seventh Circuit did everything it could to make it seem like a plausible issue, as opposed to a very clear issue that should be resolved in our favor.

It went out of its way to do that.

Antonin Scalia:

I don’t understand how they… how they could dispose of the case without resolving that.

That’s my puzzlement.

Alan Edward Untereiner:

Well–

Antonin Scalia:

How… I mean, can we do that in a case that comes up here, and just say,

“There are good arguments on both sides, it’s quite plausible. “

and remand the case without resolving the issue?

[Laughter]

Ruth Bader Ginsburg:

–They asked the District Court to resolve it.

They said the District Court should resolve it in the first instance, and then they would review it, presumably.

Alan Edward Untereiner:

–That’s right, Justice Ginsburg.

But I do think a premise of the remand for further proceedings in the District Court is that it’s plausible to read the statute this way.

And I think the Court could, and should, reverse that aspect of the Seventh Circuit’s decision.

John Paul Stevens:

–Of course, the reason they said it was plausible is that… and you may well be right, on the bottom line, and the Government agrees with you, but there are… there’s a redundancy in the statute.

There’s a phrase in there that could be taken out, and the statute would have exactly the same meaning, if you’re correct.

Alan Edward Untereiner:

We don’t agree that there… well, perhaps Your Honor could elucidate–

John Paul Stevens:

It seems to me those words… I forget what the… “commit threats of physical violence”.

So, take those words out.

The statute will have the same meaning.

Alan Edward Untereiner:

–I don’t think that’s right.

I don’t think that’s right–

John Paul Stevens:

Oh, really?

Alan Edward Untereiner:

–Justice Stevens.

I think that that does add something.

The argument is being made in this case that those words are superfluous under our reading, but I don’t think that’s correct.

John Paul Stevens:

What function do they perform?

What case would it cover that would not otherwise be covered?

Alan Edward Untereiner:

It would cover preparatory acts of violence that do not rise to an attempt.

We gave several examples–

John Paul Stevens:

That do not rise to an obtaining?

Alan Edward Untereiner:

–No, do not rise to an attempt, an attempted extortion or robbery.

The example we gave… we gave several examples in our blue brief.

One of them is a defendant who wants to rob a factory and–

John Paul Stevens:

Oh, I see what you’re saying.

Alan Edward Untereiner:

–and–

John Paul Stevens:

You’re… I understand.

Alan Edward Untereiner:

–Yes.

Yes.

If I may, I’d like to turn, in my limited time, to the third question, which is the… whether RICO authorizes private injunctive relief.

And we want to make three basic… or I’d like to make three basic–

John G. Roberts, Jr.:

No, we didn’t reach that, last time.

Alan Edward Untereiner:

–That’s correct, Mr. Chief Justice.

John G. Roberts, Jr.:

Why, if we… if we agree with you on the Hobbs Act, I assume you would not have us reach that third question this time, either.

Alan Edward Untereiner:

That’s correct, there would be no need for the Court to reach that issue this time, either.

But I’d like to just say a few words about that provision, because I think we’re right on that issue, as well.

Alan Edward Untereiner:

And the Court can pick any one of these three grounds to rule in our favor.

We’d be happy with any of them.

Our principal argument on RICO is that RICO’s civil remedies provisions were drawn from the antitrust laws, from the Clayton Act and from the Sherman Act before it.

In fact, the treble damages provision of RICO is taken almost verbatim from the Clayton Act and Sherman Act provisions.

This Court, in a long line of cases, held that the Sherman Act does not authorize private injunctive relief.

And that holding… those holdings were based on the provisions on which these RICO remedial provisions were modeled.

And so, we think when Congress took that language, which is essentially identical, at least in the… in the… in the treble damages provision, from the antitrust laws, that it was entitled to assume that they would be read the same way in RICO.

John Paul Stevens:

But, of course, at the time they did that, the Clayton Act had already been passed.

Alan Edward Untereiner:

That’s true, Justice Stevens.

But I think those provisions were carried forward, and Congress… and this Court’s cases, again and again, have relied on Congress’s use of the… of the Clayton and Sherman Act models.

You’ve said that’s a dominant strand in the legislative history.

John G. Roberts, Jr.:

Your argument’s a little inconsistent with the Franklin case, though.

Alan Edward Untereiner:

I’m sorry.

John G. Roberts, Jr.:

Gwinnett… Franklin versus Gwinnett County.

Alan Edward Untereiner:

Mr. Chief Justice, we think that Franklin is distinguishable.

There are two lines of this Court’s cases.

Franklin falls into one line.

That’s a case where this Court finds a… or acknowledges a private right of action, but where, necessarily, there’s no guidance from Congress of what the remedies are.

And in that situation, the Court does apply a presumption that all available remedies are… will be… will be imputed.

In this… in the second line of cases, which is what this case is all about, Congress sets forth a detailed remedial scheme.

And in those cases, I think it’s inappropriate… and this Court has said that repeatedly… for courts to add remedies to those schemes which Congress is… has selected.

Now, this is especially true in this case, because Congress relied on those antitrust precursors.

And, beyond that, section 16 of the Clayton Act, which expressly authorizes private injunctive relief, is… has no analog in RICO.

Now, Congress thought about including a provision like section 16 of the Clayton Act when it considered RICO.

Again and again, proposals were made, but Congress did not adopt those proposals either during the consideration of RICO or shortly thereafter.

If there are no further questions, I’d like to reserve the balance of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, Counsel.

Ms. Blatt.

Lisa Schiavo Blatt:

Thank you, Mr. Chief Justice, and may it please the Court–

It is the position of the United States that the physical violence clause of the Hobbs Act requires an intended robbery or extortion, and that private parties, under RICO, cannot obtain injunctive relief.

John Paul Stevens:

Would you not–

Sandra Day O’Connor:

Would you tell us what… which one of these questions, in your view, we ought to address, first and foremost?

If the answer to any of them is favorable to Petitioner’s position, I guess that’s the end of the case.

Lisa Schiavo Blatt:

That’s right.

We think what would be appropriate is to recognize that the… this Court’s decision last time around did contain a sweeping statement at the end that all the predicate acts must be reversed.

At the same time, the issue of the physical violence clause was not briefed by the parties, it was not discussed in this Court’s opinion, it was not discussed in the Seventh Circuit’s opinion.

And “law of the case” type principles are discretionary, and this Court has the discretion to reach the two other issues in the case.

Now, the RICO issue is more squarely presented, because there’s an actual holding by the Seventh Circuit on that point.

It’s also an issue on which the Circuits are divided.

It’s important and recurring, and it’s been before this Court twice.

At the same time, the Court also has discretion to clean up, or clarify, the Hobbs Act issue.

There was a remand.

And although there’s no holding by the Seventh Circuit, there was a remand that was predicated and based on an assumption that the plaintiffs had raised at least a substantial question.

And this Court has discretion to say that was an error of law, because, under the plain language, the physical violence clause is linked to robbery or extortion.

That’s plain on the statute, because it requires that the physical violence be in furtherance of a violation.

Ruth Bader Ginsburg:

Even though two U.S. attorneys, years back, did predicate cases on there being a discrete crime of obstructing commerce through violent means.

Lisa Schiavo Blatt:

That’s correct.

And those prosecutions were inconsistent with the written guidance of the Department of Justice in a longstanding interpretation of the Hobbs Act, at least since 1965, that it required an intended robbery or extortion.

John Paul Stevens:

–Ms. Blatt–

Lisa Schiavo Blatt:

And–

John Paul Stevens:

–can I identify a concern?

I’d like you to help me out on it.

I… that language, if you construe it the way the other side does, it would cover certain violent conspiracies that would merely obstruct interstate commerce that we could all be concerned about today.

Are there other criminal statutes on the book that fill that gap?

Lisa Schiavo Blatt:

–Yes.

18 U.S.C. 2332(b), subsection (g), is a laundry list of Federal statutes, and it’s a good source of reference for the type of Federal statutes that cover violence where there’s a distinct Federal interest.

John Paul Stevens:

So that you’re saying, in substance, that you don’t need to read the Hobbs Act the way they do in order to protect the public from the kind of harms that the… they would read the statute as covering.

Lisa Schiavo Blatt:

That’s correct.

There’s a lot of statutes on the books that apply to bombing in public places, violence against communication facilities, computer, transportation, energy, airports, any kind of mass transportation.

And that… 18 USC 2332… it’s a long list of statutes.

Lisa Schiavo Blatt:

There’s also the arson statute and the bombing statute, the use of any explosives in a… in a… in a facility that’s used in interstate commerce.

And the Government has brought thousands and thousands and thousands of Hobbs Act prosecutions, and, but for those two, the only two that we can identify, all of our prosecutions have been linked to robbery or extortion.

And if I could address the superfluous point, we don’t think the clause is superfluous either, for two reasons.

It applies to a defendant who injures innocent bystanders during a robbery.

Now, the defendant has committed the crime of robbery, but he’s also committed the separate crime of using violence against any person in furtherance of that robbery.

So, there could be cumulative punishment based on that offense, and there would be–

Anthony M. Kennedy:

What do you mean?

It’s a separate–

Lisa Schiavo Blatt:

–two separate offenses.

Anthony M. Kennedy:

–a separate offense?

Lisa Schiavo Blatt:

It’s a separate offense for–

Anthony M. Kennedy:

So you charge two counts for violating the same section?

Lisa Schiavo Blatt:

–Yes, because there’s two distinct harms.

There’s not only the business, as the victim of the robbery, but there’s the innocent bystanders who were injured or killed during the course of that robbery, and that would be two separate… and then there’s another way it’s not–

Anthony M. Kennedy:

Two separate violations, each of which violates the same statute?

Lisa Schiavo Blatt:

–Yes, that’s right.

Stephen G. Breyer:

Is it… you just… on your list, I had the impression, but tell me if I’m right or wrong, that there’s a specific statute dealing with abortion clinics now, though there wasn’t when this case began.

Lisa Schiavo Blatt:

Yes, the–

Stephen G. Breyer:

So that if–

Lisa Schiavo Blatt:

–FACE Act.

Stephen G. Breyer:

–Operation Rescue did the same kind of thing now that they did then, the Petitioners in… the plaintiffs in this case would be able to get relief under that statute.

Is that right or wrong?

Lisa Schiavo Blatt:

That’s absolutely correct.

The FACE Act, which was passed in 1994, gives private parties a right for damages and injunctive relief for blocking access to clinics.

That would… that would cover this specific case, and then there’s the more general statutes I was speaking about earlier.

But there is a specific right to injunctive relief, and I think the plaintiffs in this case tried to add claims under the FACE Act, but they were… they were denied the ability to do that.

The second way it’s not superfluous is the example given by Petitioners, in that it applies to a defendant, for instance, who tries to enlist another person in a robbery, but the neighbor, or the… excuse me, that person just refuses.

The physical violence clause would apply to that situation regardless of whether that conduct also qualifies as an attempt.

Ruth Bader Ginsburg:

Ms. Blatt, your time is almost over, so, on the injunction part, what remedies are available to the United States under your reading of the provision?

Injunctive relief, yes.

Ruth Bader Ginsburg:

What about… is there any monetary relief that the United States can seek under RICO?

Lisa Schiavo Blatt:

Well, 1964(a) addresses equitable relief, and the Government can get things like disgorgement under (a).

But as far as damages are concerned–

Ruth Bader Ginsburg:

Yes.

Lisa Schiavo Blatt:

–no.

This Court held, in the Cooper case, which is an antitrust case that was talked about in the Flamingo decision recently, the United States is not a person who is able to sue under the antitrust laws, because… the general background principle that the United States is not a person.

And we think it’s highly relevant that, after this Court repeatedly held that private parties cannot get injunctive relief, that the United States cannot get damages under the antitrust laws, Congress, in the Clayton Act, passed two express provisions of Government damages action… that was in 1955, and now it’s a treble damages action… as well as an express private injunctive action.

And, thus, there was this menu of remedies in the antitrust laws of express Government equitable, express Government damages, express private treble damages, and then Government damages.

But Congress, in RICO, only picked up two of them.

It picked up an express, a right for the attorney general to seek injunctive relief and other equitable relief, and it picked up an express right for private parties only to seek treble damages.

In light of the holding after holding after holding, we identified six cases that were… that were rendered before the passage of RICO, and the Cooper decision, which said the Government cannot seek damages.

We think it’s very clear that when Congress borrowed from the antitrust laws, but did not pick up those two express rights, that the governing principle is that when Congress borrows a statute that’s been definitively construed, Congress adopts that judicial construction along with the statute.

And it’s particularly relevant because of those two express provisions.

And RICO is… just contains that structure that was there in the Sherman Act, with the express public equitable action and the express private treble damages action.

If there are no question, we’d ask the Court to, if it wants, to reach–

Anthony M. Kennedy:

I have… just have one question.

If we were to adopt the Petitioner’s first suggestion that we should simply have a strict reading of our mandate, would that cause problems, so far as people interpreting our precedent and indicating that, by implication, we’ve reached this Hobbs Act question?

Lisa Schiavo Blatt:

–No, I don’t think so.

I think in the… I don’t think so.

The Court could apply just straightforward “law of the case” principles and say,

“Regardless of whether we actually reached the four predicate acts, our judgment spoke clearly that the injunction had to be vacated. “

John Paul Stevens:

Regardless of whether we knew what we were doing, we said it.

[Laughter]

Lisa Schiavo Blatt:

And that’s why we think it’s appropriate for the Court to say, just like the Court did in the recent per curiam Eberhart, that generally courts are supposed to follow this Court’s mandates, and they’re supposed to articulate their concerns to facilitate resolution by this Court, and then leave it up to this Court to clarify an earlier decision.

Antonin Scalia:

Except if they think we didn’t know what we were doing.

I–

Lisa Schiavo Blatt:

I think that–

Antonin Scalia:

–they ignore it if they… if they think that we didn’t know what we were doing.

Lisa Schiavo Blatt:

–Well, they could have–

John Paul Stevens:

Only when it’s perfectly clear that we didn’t know it.

John Paul Stevens:

[Laughter]

Lisa Schiavo Blatt:

–We do think that the judgment did sweep more broadly than the circumstances–

John Paul Stevens:

You don’t think there’s even an arguable basis for saying we resolved the statutory question that’s presented now, do you?

Lisa Schiavo Blatt:

–No, because usually the Court doesn’t decide important… the construction of a Federal statute, a Federal criminal statute, without discussing it.

It was… I don’t want to say “buried in footnotes”, but it was mentioned in the footnotes at the petition stage the second time around, and then it dropped out of the case.

And even the United States didn’t discuss it–

John Paul Stevens:

But it’s not mentioned in the opinion.

Lisa Schiavo Blatt:

–It’s not mentioned in the opinion.

It’s not mentioned in the briefs, at the merits stage.

It was not mentioned by the Seventh Circuit.

At the same time, the court, at the end, did say that all of the predicate acts had to be reversed.

Thank you.

John G. Roberts, Jr.:

Thank you, Ms. Blatt.

Mr. Chemerinsky.

Erwin Chemerinsky:

Good morning, Mr. Chief Justice, and may it please the Court–

The Seventh Circuit did exactly the right thing in this case.

It sent the case back to the District Court and asked the District Court to determine whether an injunction could remain, based on the four counts of physical violence and threats of violence, and asked the District Court to determine whether or not the Hobbs Act applies to physical violence and threats of violence apart from extortion and robbery.

This made great sense.

No court, in this long litigation, had yet discussed the meaning of the Hobbs Act and whether it applies to physical violence and threats of violence apart from extortion and robbery.

There’s already been a good deal of discussion about what this Court meant in its prior decision.

I think you find clarification if you look at page 399 of your prior decision, where the Court lists the predicate acts that it was considering.

And if you add up the numbers, it adds to 117 predicate acts, but if you go to the jury’s verdict, the special interrogatories, they found 121 acts.

What was omitted from the Supreme Court’s listing last time were the four counts of physical violence and threats of violence in violation of the Hobbs Act.

David H. Souter:

Well, that’s true, but don’t you have the further difficulty that we didn’t nearly reverse with respect to the… to the Hobbs Act violations, or to the listed ones.

We made it clear.

We said, expressly, that the judgment had to be reversed, which seems to sweep everything within it, doesn’t it?

Erwin Chemerinsky:

No, Your Honor.

What this Court did was reverse and remand for further consideration, consistent with the decision of this Court.

Since this Court had not considered the–

David H. Souter:

But, I mean, that’s what we always say.

David H. Souter:

And it may be that there is absolutely nothing to do, at that point, except enter judgment for one side and be done with it.

Erwin Chemerinsky:

–But this Court has been clear that it only decides the issues that it speaks to.

It’s not plausible, Your Honor, that this Court was deciding a major unresolved issue of Federal criminal law without ever speaking to the question–

David H. Souter:

Well, I think… I think, you know, your argument is fine, but the trouble is, if the question is,

“Did the Seventh Circuit honor the judgment of this Court? “

I think there’s a pretty good argument that it not… that it did not, based upon the fact that we, in effect, summed up everything we were purporting to say with the phrase that the judgment itself had to be reversed.

Erwin Chemerinsky:

–Except, Your Honor, this Court has said that it doesn’t decide issues that weren’t presented to it.

And if you look at page 397–

Antonin Scalia:

He’s not talking about the deciding of issues; he’s talking about reversing a judgment.

You don’t have to go into what the issues are in order to follow that instruction.

The judgment is reversed.

And if there were issues that should have been resolved in order to reverse the judgment, and that weren’t, it would seem to me that your remedy would not be to say to the Court of Appeals,

“Well, the Supreme Court didn’t mean what it said. “

or,

“didn’t know what it was doing. “

but, rather, to move for reconsideration here.

Erwin Chemerinsky:

–No, Your Honor.

Rehearing is to issues that were decided by this Court.

This Court clearly did not speak to the meaning of the Hobbs Act.

And so, it was completely appropriate for the Seventh Circuit to say that this Court considered the issues, in terms of what extortion was about, whether the injunction is permissible under civil RICO.

If you look at the–

Antonin Scalia:

Are you saying you couldn’t… you couldn’t file a motion for rehearing on the ground that the Court neglected to address four points that were made very… you made nothing of them in the… in the argument or in the briefs.

It was almost not considered at all.

Do you mean that when a judgment is issued that is so clearly, in your view, erroneous, you can’t come to the Court and say,

“The judgment is erroneous, you forgot to address these issues? “

I hope you can do that in a motion for rehearing.

Erwin Chemerinsky:

–But, Your Honor, it’s not required to present it that way.

And I think what’s incorrect about your phrasing is, it was Petitioners that did not present this.

It was the same Petitioners last time.

They presented to this Court the questions as to the meaning of RICO.

Erwin Chemerinsky:

In fact, if you look at page 397 of your prior decision, it clearly states that there were two issues presented, what RICO.

I think it was completely appropriate, then, for Respondents to say this Court didn’t deal with the four issues in… concerning whether violence and threats of violence are separately from the Hobbs Act.

And it was then permissible to say to the Seventh Circuit,

“These remain as a basis for relief. “

Antonin Scalia:

They would have to say not just that.

They would have to say,

“The court did not deal with those four issues, and, therefore, its judgment was erroneous. “

They would have to say that in order to… in order to act the way they did–

Erwin Chemerinsky:

Your Honor–

Antonin Scalia:

–because our judgment was “reverse”.

Erwin Chemerinsky:

–Your Honor, if this Court had entered judgment for Petitioners, which it could have, then you would be correct.

But, instead, what this Court did, as I said, is reverse and remand for consideration.

And the Seventh Circuit–

John G. Roberts, Jr.:

Do we look… do we… do we typically enter judgment, ourselves?

Erwin Chemerinsky:

–No, typically you don’t.

But it is certainly permissible and possible for this Court to do so.

John G. Roberts, Jr.:

When was the last time we did that?

Erwin Chemerinsky:

I don’t know the answer to that, Your Honor, other than, of course, as a court, this Court obviously could enter judgment for Petitioners.

The fact that this Court said–

John Paul Stevens:

Well, I don’t think we would actually enter judgment.

We’d… we might reverse with instructions to have the lower court enter judgment, but we wouldn’t enter the judgment ourselves.

Erwin Chemerinsky:

–Your Honor, the Court could certainly, and, more likely, would do what you say.

It could also affect the judgment–

John Paul Stevens:

The mandate, in this case, remanded, is that what you–

Erwin Chemerinsky:

–That’s correct, Your Honor.

John Paul Stevens:

–So further proceedings–

Erwin Chemerinsky:

That’s right.

John Paul Stevens:

–consistent with the opinion.

Erwin Chemerinsky:

And my only point is, since this Court clearly said it was dealing with 117 of the acts, and clearly did not mention the four counts of violence and threats of violence under the Hobbs Act–

John G. Roberts, Jr.:

Well, it also said, in the last paragraph,

John G. Roberts, Jr.:

“all of the predicate acts supporting the jury’s verdict. “

Erwin Chemerinsky:

–That’s right.

And the question, of course, is, What does “all” refer to here?

And I would say, if you go back to page 399, it lists the predicate acts that it’s referring to and there–

John G. Roberts, Jr.:

No, it says–

Erwin Chemerinsky:

–117–

John G. Roberts, Jr.:

“# all the predicate acts supporting the jury’s finding of a RICO violation. “

Erwin Chemerinsky:

–But, Your Honor–

John G. Roberts, Jr.:

So, it’s quite clear what “all” was referring to.

Erwin Chemerinsky:

–But, Chief Justice Roberts, then the assumption would have to be that this Court was deciding the four counts, in terms of violence and threats of violence, even though it wasn’t presented in the cert petition, even though it wasn’t briefed, and even though it was never discussed in this Court’s opinion.

And I think it was quite logical for the Seventh Circuit to say the appropriate thing to do is to let the District Court decide whether any injunctive relief was appropriate, based on those four counts; and, if so, what that provision of the Hobbs Act means.

Ruth Bader Ginsburg:

Mr. Chemerinsky, if we turn from what this Court did, or did not, think about last time around to what those four counts were, would I look to find out what were those four acts of violence that remain in the case?

I could not find, in any of the papers before us, any specific definition of what those acts of violence were.

I mean, the jury was given… I don’t know what… was it a dozen possibilities?

And they found four.

But which four, we have no idea.

Erwin Chemerinsky:

But, Your Honor, that would be a reason why this case should go back to the District Court, because that’s the judge who tried the case.

Ruth Bader Ginsburg:

But he… but wasn’t this tried to a jury?

That was a jury that made those findings.

Erwin Chemerinsky:

Yes–

Ruth Bader Ginsburg:

And the jury is no longer sitting.

Erwin Chemerinsky:

–But the judge presided over the jury trial, and the judge could identify if there were four acts of violence and threats of violence to obstruct interstate commerce.

Ruth Bader Ginsburg:

He knows that there were four acts.

He knows that he… under his instructions, the jury could pick 12.

How could he know which four the jury homed in on?

Erwin Chemerinsky:

But, Justice Ginsburg, he doesn’t need to know which four.

What he needs to determine is, Did the record that was presented to the jury support the finding that there were four acts of violence and threats of violence?

And we’d suggest that–

Ruth Bader Ginsburg:

But does it… when what turns on that finding is injunctive relief, the judge might very well be influenced by what those particular acts were.

He might say one set of four was not adequate to issue this injunction, but another set of four would be.

Ruth Bader Ginsburg:

And we just don’t know… we don’t know what those acts were.

The jury is not to be called back.

The Seventh Circuit said “no more evidence”.

So, if we get down to those four acts, how can we say those are sufficient to uphold an injunction, when we don’t even know what the acts were?

Erwin Chemerinsky:

–But the traditional rule is to interpret the jury’s verdict in a way that’s most favorable to its conclusion.

And so, here what the judge has to decide is, based on the record, were there four acts of violence or threats of violence to obstruct interstate commerce?

And we’d suggest it would be quite easy for the judge to identify four such acts.

Antonin Scalia:

Well, you say “most favorable to its conclusion”, but did the jury conclude that there should be an injunction?

Erwin Chemerinsky:

No, of course, but–

Antonin Scalia:

That’s up to the judge.

Erwin Chemerinsky:

–but the jury–

Antonin Scalia:

So, I mean, the principle that you interpret a verdict in the manner most favorable to its conclusion has no application here at all.

Erwin Chemerinsky:

–But, Your Honor, the jury did find, in special interrogatory 4(e), that there was violence and threats of violence and if… to obstruct interstate commerce.

Also here, remember the judge held a separate hearing after the jury verdict, before issuing injunction.

And if, on the basis of the evidence that he heard during the trial in that special hearing, he found four acts of violence and threats of violence, he then has to decide what injunctive relief is appropriate.

And, of course, he would also, consistent–

Antonin Scalia:

Excuse me.

You mean it’s up… I don’t understand that.

The judge, in order to issue the injunction, becomes a second factfinder, and he can find four… he can pick four out of the twelve, perhaps four that the jury had not picked?

Erwin Chemerinsky:

–Your Honor, since this is an injunction, he is allowed to consider the evidence that he heard, since he was sitting in an equitable matter.

And so, there were actually two presentations–

Antonin Scalia:

So, he can… he can actually make a finding.

And it… and it could be that the jury found that eight of them weren’t valid, and the judge, in order to issue an injunction, can contradict the jury and say,

“You know, I find that other four? “

Erwin Chemerinsky:

–Well, when it comes to injunctive relief, the judge can hold a separate hearing, and that’s exactly what happened here.

And I believe the issue for the judge on remand would be, Were there four acts of violence or threats of violence to obstruct interstate commerce?

And I think the record clearly indicates there were.

The judge said, here,

“There is enough evidence, to fill this courtroom, of illegal acts by the Respondents. “

Ruth Bader Ginsburg:

But the Seventh Circuit in its most recent expression said,

Ruth Bader Ginsburg:

“It may well be that the judge will decide that those four predicate acts. “

–as opposed to 121 going in, four…

“were not sufficient to support certainly a nationwide injunction, but perhaps not any injunction. “

Erwin Chemerinsky:

That’s correct, Your Honor.

That’s why it was appropriate for the Seventh Circuit to remand the case to the District Court, because if the court were to conclude that an injunction is not appropriate, then anything that would be said about the meaning of the Hobbs Act or about civil RICO would then just be an advisory opinion.

And that’s why this Court, we believe, should also send the case back to the District Court.

But if it reaches the meaning of the Hobbs Act or civil RICO, we believe that this is a situation there the plain meaning of the statute clearly controls.

John G. Roberts, Jr.:

Is there anything that… under your reading of the Hobbs Act, that isn’t covered by the FACE Act?

Erwin Chemerinsky:

Well, yes, Your Honor.

The nature of the relief is certainly different under the Hobbs Act than under the FACE Act.

Also, of course, at the time this action was brought, 19 years ago, the FACE Act didn’t exist.

John G. Roberts, Jr.:

No, I know.

But in terms of the… we now have specific legislation addressed to the specific context.

And all of the acts that you’re complaining of in the original suit are actionable under the FACE Act, aren’t they?

Erwin Chemerinsky:

That’s correct, Your Honor.

Stephen G. Breyer:

I’d like you to get to the meaning of the Hobbs Act.

Erwin Chemerinsky:

Yes, sir.

Stephen G. Breyer:

And I’ll try to focus my own thoughts on this by saying two objections to what you’re arguing, related, that when they passed the Hobbs Act, it had a section 2, and section 2 said,

“This is an Act that forbids robbery and extortion, all involving interstate commerce. “

“And robbery/extortion involve property. “

Then it had a section 5.

And section 5 said,

“This Act forbids physical violence or threats of violence related to section 2. “

Now, all that happened since then is, there was a recodification.

And the recodification wasn’t meant to change anything substantive.

Second and related point Enmons.

For 35 years, working people in this country have thought they had a right to strike, free of the Hobbs Act.

And your interpretation, as the AFL CIO points out, will gut the right to strike.

Now, those are two strong arguments against you, and I’d like to hear your response.

Erwin Chemerinsky:

Thank you.

Erwin Chemerinsky:

And I’ll address them, first and then second.

As to the first point, you correctly quote the 1946 statute, but the 1948 revision was approved by Congress, and it specifically says

“robbery or extortion or attempts so to do. “

comma,

“or physical violence or threats of violence. “

This Court has said, in cases like United States versus Ron Pair, that commas have to be given meaning.

This Court, in many cases, such as FCC versus Pacifica, said, “or” must be given meaning.

There is–

John G. Roberts, Jr.:

Well, we’ve also said that we don’t assume a substantive change from a recodification.

Erwin Chemerinsky:

–But, Your Honor… the statute has been approved by Congress.

It is that which is authoritative.

And this Court has said, in other cases, like United States versus Wells, and State Farm versus Tashire, that revisors notes are often erroneous.

This Court has said the cardinal rule of statutory construction is that the plain language must be followed.

John G. Roberts, Jr.:

So, your argument requires us to assume that Congress intended a substantive change when it recodified the Hobbs Act.

Erwin Chemerinsky:

That’s right.

This… my argument is that the plain language makes clear that Congress did enact a substantive change.

And, indeed, to interpret the law as Petitioner suggests, would render the words about

“physical violence or threats of violence. “

as mere surplusage.

And so, for example, some of the illustrations that were mentioned earlier, one was about the possibility of a planned pride and attempt.

But, in a model penal code, section 5.01, it’s clear that any substantial step is sufficient for an attempt that–

John G. Roberts, Jr.:

Who… who’s enacted the model penal code?

Erwin Chemerinsky:

–I mention the model penal code as just something that’s regarded as an authoritative definition with regard to criminal law.

There’s many jurisdictions around the country, including at the Federal level, consistently saying a substantial step is sufficient for an attempt.

Another example that was mentioned was the subordinate enforcer.

Would the subordinate enforcer would be likely considered part of a conspiracy or an accomplice?

Ruth Bader Ginsburg:

Mr. Chemerinsky, the problem that I have, and Justice Breyer expressed, is, we have the revisor’s notes that suggest,

“I was just getting rid of extra words. “

“I was making this a tighter provision. “

And there’s not anything to indicate that Congress considered any change in the substance of the Act.

Erwin Chemerinsky:

Your Honor, there is almost no legislative history for the 1948 revision.

All there is, as you rightly say, is the revisor’s notes.

But this Court has said that the revisor’s notes are not authoritative.

And this Court has said, on so many occasions, that–

Ruth Bader Ginsburg:

But here’s a… the revisor telling us,

“I did this, and I did this to clean up the Act, to make it less wordy. “

Erwin Chemerinsky:

–Yes.

But even if that’s regarded as authoritative, this Court has so often said legislative history cannot justify ignoring plain meaning.

And, given the comma and the word “or” and the fact that, otherwise, the words “by physical violence” would have no meaning–

Antonin Scalia:

Let me–

Erwin Chemerinsky:

–that’s the plain meaning.

Antonin Scalia:

–let me talk–

David H. Souter:

Well–

Antonin Scalia:

–about the comma.

I don’t… I don’t… I don’t understand your argument on that point.

I mean, it says,

“Whoever, in any way or degree, obstructs, delays, or affects commerce or the movement or any article or commodity in commerce by robbery or extortion or attempts or conspires to do so. “

comma… that’s the comma you’re talking about?

Erwin Chemerinsky:

Yes.

Antonin Scalia:

“# or threatens physical violence to any person or property. “

but it continues,

“in furtherance of a plan or purpose to do anything in violation of this section. “

Now, the only thing that this section has, prior to that statement, said to be a violation is obstructing/delaying by robbery, extortion, or attempt or conspiracy to robbery or extortion.

Erwin Chemerinsky:

No, Your Honor.

Two points here.

First, it says “a plan”.

It’s clear, there is… it’s a plan to obstruct, interfere, or affect commerce.

The others, Your Honor, you quickly skipped over–

David H. Souter:

–No, but–

Antonin Scalia:

“Plan to do anything in violation of this section. “

Antonin Scalia:

which is not just obstructing commerce, but obstructing it by robbery, extortion, or attempt or conspiracy to robbery or extortion.

Erwin Chemerinsky:

–No, Your Honor.

I think that does deprive the comma or the word “or” meaning.

And, in fact, it deprives the title of meaning, because the title here can be used when the title makes clear that it’s about violence to obstruct interstate commerce.

I’d also point out some words–

Stephen G. Breyer:

But that’s a jurisdictional hook, isn’t it?

When you see something in a criminal statute that forbids “affecting commerce by”, that means that Congress wants to prevent the conduct that will follow the words “by”, and it needs a jurisdictional hook, so it puts in “affecting commerce”.

That’s how I’ve always understood the Federal criminal code.

Am I–

Erwin Chemerinsky:

–Yes.

Stephen G. Breyer:

–wrong in that?

Erwin Chemerinsky:

Yes, Your Honor.

Here, what it’s saying is that Congress is prohibiting

“plans to obstruct commerce by robbery or extortion or physical violence or threats of violence. “

And, Justice Scalia, when you read the statute to me, some of the words that were skipped over quickly were the words “so to do”.

Notice it says

“with regard to robbery or extortion or attempts to do so. “

comma.

If they meant violence and physical violence to only refer to extortion or robbery, as they did with “attempt”, then “so to do” could have been put into that clause, as well.

Antonin Scalia:

What is… what meaning do you give to the phrase

“in furtherance of a plan or purpose to do anything in violation of this section? “

Under your interpretation, you could just drop that… drop that phrase completely.

Erwin Chemerinsky:

Not at all, because it makes clear that Congress didn’t mean, here, to criminalize every act of violence that occurs.

It has to be, in order to be actionable, a

“plan of physical violence to obstruct interstate commerce. “

That’s why this doesn’t apply–

Antonin Scalia:

But that’s not a violation of the section.

1951.

Erwin Chemerinsky:

–No, Your Honor.

What is a violation of 1951–

Antonin Scalia:

–is obstructing it by robbery or by extortion or by attempt or conspiracy to robbery or extortion.

Erwin Chemerinsky:

–I disagree, because I think then it does reduce the words

“physical violence or threats of physical violence. “

to mere surplusage.

Sandra Day O’Connor:

Well, no, because the–

David H. Souter:

–Well, what do you say to the response–

Sandra Day O’Connor:

–the counsel for the Government explained that if, in the course of committing a robbery, some bystander is physically injured, it’s covered.

Erwin Chemerinsky:

No, Your–

Sandra Day O’Connor:

I mean, that’s understandable, isn’t it?

Erwin Chemerinsky:

–No, Your Honor.

The reason is, if somebody is injured in the course of a robbery, that’s already punished as part of the robbery.

In fact, the Federal sentencing guidelines make clear that harms that are caused while committing a crime are punished as a part of that crime.

You–

Antonin Scalia:

If you’re–

Erwin Chemerinsky:

–don’t need to–

Antonin Scalia:

–convicted–

Erwin Chemerinsky:

–include that language.

Antonin Scalia:

–of the crime, but you cannot be indicted as a separate crime.

This makes it a separate offense.

Erwin Chemerinsky:

But, Your Honor–

Antonin Scalia:

You’re saying we… you can use it to aggravate the punishment for some other offense, but this does… this does something quite beyond that.

It says it is a separate offense.

Erwin Chemerinsky:

–But, Your Honor, for every criminal law, injuries that are committed by those who are engaged in the criminal activity are punished as a part of that criminal act.

Now, Justice Breyer, your second–

David H. Souter:

–Well, you say they are punished as a part of the act, but Justice Scalia’s point is still true, it only goes to punishment.

The way this is written, it may be charged as a separate offense.

Erwin Chemerinsky:

–But, Your Honor, there would be no need to charge a separate offense.

If you look at 1951(b)–

David H. Souter:

Well, I… I mean, one is… I’m attempted to say, “Well, tell Congress that”.

If they want to create a separate offense, they can do it.

Erwin Chemerinsky:

–No, Your Honor.

If you look at section 1951(b), where it defines “robbery” and “extortion”, it already includes “violence” in the definition of “robbery” and “extortion”.

There would be no need for Congress to separately–

David H. Souter:

But isn’t the reasonable reading of that,

“violence in the course of achieving… for the purpose of achieving the object in question. “

as opposed to, in effect, a “by blow against a bystander”?

Erwin Chemerinsky:

–No, Your Honor, I don’t think so, since the statute defines 1951(b), specifically to include acts of violence, then all the things we’re talking about after the crime would already be part of what’s prohibited by the statute.

Stephen G. Breyer:

Mr.–

Erwin Chemerinsky:

It could already be charged–

Stephen G. Breyer:

–I want to give you a chance, because you’re quite right in thinking that I’m moved, in large part… or worried, in large part… not about this language, but about the change in Federal criminal law.

And the change in Federal criminal law, if you’re right, way beyond this case, would transform virtually every threat of violence made anywhere in the United States into a serious Federal crime.

At the least, it would… and make a major change in threats of violence on the picket line.

And those are two aspects of the same thing.

And I’m worried about the upsetting of expectations way outside the context of this case and making a major change in Federal labor law, for example.

Erwin Chemerinsky:

–Let me start labor law and then go more generally.

Section 1951(c) has a specific provision that makes clear that the Hobbs Act was not meant to change the protection of labor unions.

And, in fact, every one of the statutory references in 1951(c) is to a statute protecting labor unions.

Enmons specifically says–

Stephen G. Breyer:

What does it… 1951(c) says what?

Erwin Chemerinsky:

–It lists… it says

“nothing in this statute is meant to alter the protections of. “

and then it lists a whole number of statutes, and those are all statutes that protect labor unions.

Stephen G. Breyer:

Yeah, but I… then perhaps I… that’s an old statute, 1951(c), isn’t it?

Is it something brand new?

Erwin Chemerinsky:

Well, this is the Hobbs Act.

Stephen G. Breyer:

Yeah.

Erwin Chemerinsky:

Section 3–

Stephen G. Breyer:

All right.

What is it–

Erwin Chemerinsky:

–of the Hobbs Act.

Stephen G. Breyer:

–Well, the case that interpreted the Hobbs Act, which is Enmons–

Erwin Chemerinsky:

Right.

Stephen G. Breyer:

–seems to rely, for the labor union exemption, on the fact that a threat of violence in effort to obtain legitimate wages is not within the Act.

But if we read “legitimate wages” out of the Act, then I guess we would be left with “the threat of violence”.

Erwin Chemerinsky:

No, Your Honor.

And the reason is, Enmons says there’s a special legislative history of the Hobbs Act specifically about labor.

And Enmons concluded that if the violence is part of a strike to pursue lawful union activities, it is not actionable under the Hobbs Act.

Nothing that this Court would decide here would change that specific protection of unions, one that’s codified in the statute.

As to your former question, nor would ruling in favor of Respondents here change the criminal laws you suggest.

The statute would only apply to a plan to obstruct interstate commerce by physical violence or threats of violence.

Your Honor, this is an interpretation–

Stephen G. Breyer:

No, the… it’s not a… that’s wrong.

It says “affect commerce”.

Erwin Chemerinsky:

–Right.

Stephen G. Breyer:

And, therefore, we have the instance of any threat of violence that affects commerce becomes a Federal crime subject to 20 years of imprisonment.

And, of course, in today’s world, as you know, I believe almost everything affects commerce.

And if I’m even close to being right, this is a major incursion of Federal law, serious criminal Federal law, into what could be fairly minor matters of State criminal law.

Erwin Chemerinsky:

No, Your Honor, because of the importance of the word “plan”.

And this goes to my answer to Justice Scalia earlier.

The fact that it has to be a plan to obstruct or affect interstate commerce is an important limitation here.

And it’s key to remember that this is the position that the United States Government took for at least 25 years… from the Franks case, in 1974, to the Milton case, in the Fourth Circuit in 1998, the Yankowski case, in 1999… and it hasn’t had those effects.

But if it does, Your Honor, then the appropriate solution is for Congress to change the statute, but not for this Court to ignore the plain meaning of the law.

The final issue that was presented concerns the RICO statute.

Here, section 1964(a) clearly authorizes courts to have jurisdiction to issue injunctions.

Unlike the Sherman Act provision that only authorized Government to seek injunctive relief, section 1964(a) allows Federal courts of jurisdiction, in any instance.

This Court has said, in many instances, as Chief Justice Roberts pointed out, such as Franklin versus Gwinnett County, that when Federal courts have jurisdiction, they retain equitable power unless Congress expressly stripped that authority.

So–

John G. Roberts, Jr.:

Well, your friend’s answer was that that was an implied right of action case; and, therefore, the remedies had not been spelled out; and so, you assume the broader remedies.

What’s wrong with that answer?

Erwin Chemerinsky:

–No, Your Honor, because this Court has said, in any instance, Federal courts have equitable power unless Congress has expressly stripped it of that power.

Erwin Chemerinsky:

United States versus Umansky would be an example where this Court said that, as well as the language from Franklin versus Gwinnett County.

And that’s especially true here, where Congress, in the RICO statute, specifically said that it should be broadly construed.

This Court, in Sedima versus Imrex, said especially as to the remedial provision, section 1964, this should be broad construction.

Ruth Bader Ginsburg:

As you read it, can a private party get a preliminary injunction?

Erwin Chemerinsky:

No, Your Honor, in terms of the Government specifically authorized by 1964(b) to get a preliminary injunction.

And the reason for that is, generally the Government can’t get injunctions to stop criminal activity.

1964(b) was added for that.

But I’d say 1964(a), to go to your specific question, would authorize anyone to be able to go to the Federal court to use any of the Federal court’s inherent powers.

Ruth Bader Ginsburg:

So, a private party could get an… not only permanent, but preliminary–

Erwin Chemerinsky:

Yes, Your Honor.

Ruth Bader Ginsburg:

–injunction.

Erwin Chemerinsky:

Yes.

1964(b) was added because of the traditional common law rule that the Government generally can’t get such injunctions.

Our position is simple.

We believe that the Hobbs Act was changed precisely to deal with the situations where there might be a radical animal activist group that might be blowing up restaurants that serve meat, or clothing stores, or where there might be situations where racists were blowing up businesses owned by blacks or Jews.

That’s what the Hobbs Act does.

And the RICO statute provides, as Congress intended, a broad remedial scheme.

Antonin Scalia:

Mr. Chemerinsky, I… you said earlier that our… that we “reversed and remanded”.

That was not in our opinion, though, as it sometimes is,

“Therefore, you know, the case is remanded. “

It doesn’t say that.

Our opinion here just says “reversed”.

Erwin Chemerinsky:

Right.

But, Your Honor, this case–

Antonin Scalia:

It just says–

Erwin Chemerinsky:

–obviously was sent back–

Antonin Scalia:

–“# reversed”.

Erwin Chemerinsky:

–to the Seventh Circuit.

And the Seventh Circuit then had to interpret what this Court decided.

And–

Antonin Scalia:

I see.

And they interpreted “reversed” to mean “remanded”.

Erwin Chemerinsky:

–Because this Court had not considered–

Antonin Scalia:

I see.

Erwin Chemerinsky:

–the four acts–

Antonin Scalia:

I see.

Erwin Chemerinsky:

–of violence and threats of violence.

Antonin Scalia:

So, that enabled them to say that what we meant was not “reversed”, but “reversed and remanded”.

Erwin Chemerinsky:

What this… what the Seventh Circuit did was look at this Court’s opinion and see that the statement of the issues, on page 397–

Antonin Scalia:

They didn’t look at the last line of our opinion, which said “reversed”.

Erwin Chemerinsky:

–But, Your Honor, that would then assume that this Court decided an issue about the meaning of the Hobbs Act that was never presented in the cert petitions, never briefed, never addressed in the opinion.

Ruth Bader Ginsburg:

They made the assumption that this Court has an obligation to reason why, and there was no reason why given as to those four counts.

Erwin Chemerinsky:

That’s right.

No discussion whatsoever, Your Honor.

Antonin Scalia:

It’s a broad principle.

Whenever a Court of Appeals thinks that we haven’t really resolved all the issues in the case, they can ignore our order that says “reversed”.

Erwin Chemerinsky:

Of course not, Your Honor.

What the Seventh Circuit had to decide was, What about the four counts of violence or threats of violence that were found by the jury?

Since they weren’t ever discussed, the Court of Appeals did exactly the right thing, sent it back to the District Court to decide whether an injunction is still appropriate; and, if so, what the Hobbs Act means.

Thank you.

John G. Roberts, Jr.:

Well, Congress never discussed the change in the Hobbs Act that you’re proposing, in 1948.

[Laughter]

Erwin Chemerinsky:

That’s true.

But it’s unusual that, in 1948, Congress actually passed that statute.

And so, that’s binding.

Here, the Seventh Circuit–

John Paul Stevens:

We also actually entered a mandate, too.

[Laughter]

Erwin Chemerinsky:

–Yes, that’s true.

Thank you very much.

John G. Roberts, Jr.:

Thank you, Mr. Chemerinsky.

Mr. Untereiner, you have 3 minutes remaining.

Alan Edward Untereiner:

Thank you, Mr. Chief Justice.

I just want to make a few very quick points.

First, I heard Mr. Chemerinsky say that the third clause was unnecessary in the Hobbs Act, because robbery and extortion necessarily involve acts or threats of violence.

I just would like to point out that the Hobbs Act also covers official extortion, which does not require acts or threats of violence.

Secondly, on the Enmons point that Justice Breyer was asking about, you’re quite right, Justice Breyer, that to accept the other side’s position would effectively overrule Enmons.

Enmons did not rely, in any way, on section 1951(c), had nothing to do with the Court’s analysis.

If you look at section 1951(c), which is reprinted in the Scheidler blue brief at page 2(a), you’ll see that it just refers to some labor statutes.

It says that the Hobbs Act is not meant to repeal, modify, or affect those laws.

But those laws don’t protect violent conduct, so that’s a red herring.

And, number three, I’d just like to point out that in this Court’s last decision in this case, the Court made clear that coercion is not covered by the Hobbs Act.

But under the Respondent’s reading, some acts of coercion would, in fact, be covered by the Hobbs Act.

Finally, we’d just like to reiterate our request that, if the Court rules in our favor, it make very clear, in remanding the case, that judgment should be entered in favor of Petitioners.

Thank you.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.