Among the various folks being talked about as candidates for the Souter vacancy, one whose candidacy I take seriously and whom I have previously written very little about is Seventh Circuit judge Diane P. Wood. I will address her record in this and subsequent posts.
Let’s begin with Wood’s two rulings in National Organization for Women v. Scheidler, which were reversed by the Supreme Court by 8-1 and 8-0 margins, respectively. These rulings came in litigation in which the National Organization for Women (“NOW”) and abortion clinics sued anti-abortion activists under the Racketeer Influenced and Corrupt Organization Act (“RICO”) for engaging in various forms of illegal conduct in the course of protests at abortion clinics.
In 2001, Wood wrote the panel opinion that affirmed the trial court’s award of damages and of a permanent nationwide injunction against the defendants. One particular question was whether defendants had committed violations of the federal extortion statute—the so-called Hobbs Act—on which their RICO liability was based. Wood ruled that defendants’ argument that the Hobbs Act’s element of “obtaining of property from another” required, of all things, the obtaining of property from another was foreclosed by circuit precedent. (267 F.3d 687.)
By a vote of 8-1, the Supreme Court reversed Wood’s ruling. (537 U.S. 393 (2003).) Chief Justice Rehnquist’s opinion, joined by all justices except Justice Stevens, ruled that the Hobbs Act meant what it said. Of particular importance, given what Wood proceeded to do, is Rehnquist’s conclusion to his opinion:
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. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.
The Court, in other words, put an end to the case. Or so it surely thought.
Instead of taking the ministerial action of reversing the district court’s order, the Seventh Circuit panel, in another opinion by Wood, undertook to identify an issue in the case that it believed remained: whether four acts or threats of physical violence unrelated to extortion or robbery could support a more narrow injunction. (396 F.3d 807 (2005).) It issued an order remanding the case to the district court for further action.
The Supreme Court granted review of Wood’s ruling to consider three questions, including (1) whether the Seventh Circuit “improperly regarded this Court’s mandate … by holding that the injunction issued by the District Court might not need to be vacated,” and (2) whether the Hobbs Act “forbids violent conduct unrelated to extortion or robbery.” In a unanimous opinion by Justice Breyer, the Court ruled that the answer to the second question was no and that there was therefore no need to address the first question. The last sentence of Justice Breyer’s opinion, however, seems clearly to signal the Court’s views on that question, as the Court goes out of its way to prevent any further mischief by Wood: “The judgment of the Court of Appeals is reversed, and the cases are remanded for entry of judgment for petitioners.” (547 U.S. 9 (2006).)
I’ll set aside here the question whether Wood’s initial ruling on the Hobbs Act question was in fact dictated by circuit precedent, though I’ll note that counsel for defendants vigorously contested her reading of circuit precedent. I’ll instead highlight Wood’s plain defiance of the Supreme Court’s initial order of reversal and her resort to a legal argument so flimsy that that the Court unanimously rejected it.
Might Wood have been driven to such mischief by what President Obama would laud as her own “deepest values,” her “core concerns,” and the “depth and breadth”—and focus—of her “empathy”? Well, consider that in its editions from 1996 to 2005, Sullivan’s Judicial Profiles stated that Wood was a member of NOW, the lead plaintiff in the litigation, and of Planned Parenthood of Metropolitan Chicago, part of the plaintiff class of abortion clinics. There’s evidently a dispute over whether that information remained current—she listed her membership in those groups when she was nominated to the Seventh Circuit—and I will readily presume that Wood was not in fact a member of those organizations while sitting on their cases. But her course of conduct signals the dangers of judicial lawlessness that inhere in Obama’s badly misguided standard for judging.