Scheidler Confident After Supreme Court Hearing

Joe Scheidler after Oral Arguments

Joe Scheidler speaks to reporters after the hearing Nov. 30 [Photo by EJS]

Joe Scheidler and the Pro-Life Action League are confident of a final victory in the NOW v. Scheidler case, following oral arguments in the Supreme Court. Scheidler v. NOW was the first case heard on Wednesday, November 30, when oral arguments were also heard in the New Hampshire parental notification case, Planned Parenthood v. Ayotte.

In 2003, the Supreme Court reversed the 1999 district court judgement against Scheidler, with William Rehnquist writing for the eight-judge majority, “Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed.” He concluded, “Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.”

Nevertheless, the Seventh Circuit Court of Appeals in Chicago at the behest of NOW’s attorneys, ruled that the Supreme Court may have overlooked four “predicate acts” and remanded the case to the district court. Rather than start all over with a possible new trial, Scheidler appealed once again to the Supreme Court.

Alan Untereiner, on behalf of Scheidler, asked the Court to reaffirm its Reversal with very explicit instructions.

Encouraging Questions from the Justices

Justice Antonin Scalia asked, “Is it conceivable that this Court overlooked important matters?” Untereiner responded that it is possible but unlikely and that NOW should have taken their concerns straight to the Supreme Court for clarification rather than wait to address the Seventh Circuit Court. Justice Sandra Day O’Connor said that it is disturbing to think that a Court below would defy the Supreme Court.

Untereiner, Scheidler and Brejcha

Scheidler signals “three,” for his third Supreme Court appearance, with attorneys Untereiner (left) and Brejcha (right) [Photo by EJS]

Questioning Erwin Chemerinsky, attorney for NOW, Justice Ginsburg asked about the illusive “four acts or threats of violence.” She had searched all the court documents and could not find out what they were. She wondered how a trial judge could make a determination about whether these “four acts” are sufficient to uphold the nationwide injunction issued in 1999, if he doesn’t know what they are. We’ve been asking that same question for six years.

A highlight of the one-hour oral argument was Justice Scalia’s reminder to Chemerinsky that the Supreme Court had said that “All of the predicate acts must be reversed.” Chemerinsky replied that that depended on what “all” refers to.

Justice Breyer was concerned that NOW’s reading of the Hobb’s Act (which defines the crimes under RICO) would make federal crimes out of incidents that are properly state matters.

Both the attorneys and petitioners (Scheidler, Murphy and Scholberg) felt confident in a victory leaving the Court after the oral argument. A ruling is expected in late January or early February.

NOW v. Scheidler is the only case in U.S. history to go before the Supreme Court three times.

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