If you have never taken a class with Yale's resident literary wizard, Harold Bloom—and you probably shouldn't if your name is Naomi Wolf—it may be hard to imagine that an entire hour spent deconstructing the difference between the word means and the word includes could be riveting. But riveting it can be, in the hands of the right literary thinkers. And if those thinkers choose to assume, as might Bloom, that every word in every piece of legislation passed by Congress is chosen deliberately and thoughtfully, rather than in the crazed and half-assed manner so often associated with legislative drafting, all the better. Justice Antonin Scalia doesn't pound on the table at oral argument very often. But when he's trying to make the point that the word includes is, in fact, exclusive, he's driven to brute physical violence this morning.
"Words, words, words," said Hamlet. But then look how that turned out.
Former workers at Mohawk Industries, a Georgia-based carpet company, brought a class-action suit against the corporation under RICO, the Racketeer Influenced and Corrupt Organizations Act. RICO is the 1970 statute whose principal object was fighting organized crime. But Mohawk, like Tyson Foods and Wal-Mart, has not been accused of operating speak-easies or shaking down the local dry cleaner. The criminal "enterprise" that it's accused of conducting is contracting with outside recruiting companies to hire illegal immigrants and then cook their work papers. The former employees claim that this both violated immigration laws and artificially depressed their wages.
This case has yet to go to trial on the merits. It's been hung up by appeals over this extremely narrow, almost Talmudic question: Can an enterprise as contemplated by the RICO statute be composed of a corporation and outside recruiters who allegedly conspired to hire illegal workers? The 11th Circuit Court of Appeals agreed with the employees that it could and refused to dismiss the claims. Mohawk appealed.
One of the two issues in the case is a purely textual one: Section 1961(4) provides that a RICO enterprise "includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." [Italics mine]. Mohawk claims that this definition doesn't encompass corporations, since corporations are not mentioned in the second clause of that sentence. Corporations aren't mentioned, it says, because Congress drafted RICO to target organized crime and gangs, not big companies who futz with the law.
Still with me?
We are fighting about whether everything that comes after "and" in that definition is an exclusive list of possible RICO violators, or merely a list of possible examples. The second issue is whether Mohawk was conducting the affairs of a distinct enterprise—as required under RICO—or just doing its own normal business. If it was just performing its own business functions, it's not a violation of RICO.
Carter Phillips has 30 minutes to represent Mohawk, and it's not clear the court even wants to hear his textual arguments. Scalia asks, "Why is this before us? You didn't argue this in the courts below and you didn't brief it here."
Phillips responds that this textual issue was "absolutely settled" against Mohawk on the 11th Circuit and so it made no sense to argue it there. "On the 11th Circuit and nine other circuits!" injects Scalia. Justice Ruth Bader Ginsburg is similarly insistent that "you can't … include questions not presented below." The justices go on in this vein for some time before turning to the merits of the textual issue.
Justice Sam Alito asks why the provision uses the word includes before listing the components of a RICO enterprise, pointing out that elsewhere Congress used the word means when it intended to create an exclusive definition, and includes only when it offered a general list of examples.