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What Will Kill the Next Supreme Court Nominee?A) abortion, B) gay rights, or C) neither.

By Emily BazelonPosted Tuesday, May 12, 2009, at 11:15 AM ET

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NOW sued the protest groups under the RICO law, which triples damages for violations of another federal extortion statute called the Hobbs Act. The theory behind the suit was that the protesters' acts of planning, threats, and destruction amounted to extortion. At the time, it wasn't clear what the alternatives were for bringing a halt to a pattern of violent protests around the country, other than suing over them one by one.

In its first crack at the case, in 1992, Wood's court threw it out. A three-judge panel of the 7^th Circuit ruled that RICO didn't apply because NOW and the other plaintiffs hadn't shown that the alleged acts of racketeering were "economically motivated," as the judges thought the statute required.* The Supreme Court reversed that ruling in 1994 and sent the case back for trial. In other words, the high court, not Wood, initially breathed new life into NOW's suit. After a seven-week trial, a jury found PLAN liable for dozens of violations of extortion law and also for acts or threats of physical violence. The jury awarded the abortion providers about $250,000 in damages all told. More significantly, the trial judge entered a permanent, nationwide injunction barring PLAN and its leaders from interfering with any abortion clinic operations.

Wood and her panel approved the trial judges' rulings. The case went back to the Supreme Court, and in 2003, by a majority of 8-1, the Supreme Court reversed. This is the moment in which Wood looks like she's out on a limb. Even Justice Ruth Bader Ginsburg agreed to reverse her, writing that "the Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of 'extortion' adopted by the Seventh Circuit."

But Wood's expansive definition turns on the reading of a single word in the Hobbs Act. The Supreme Court held that PLAN's acts were criminal but did not constitute extortion for one reason: because PLAN did not "obtain" the abortion clinics' property. The protesters wrecked things and deprived the clinics of their exclusive right to control their business assets, the court continued, but they didn't "obtain" property, legally speaking, because they didn't get something of value that "they could exercise, transfer, or sell." If that sounds like lawyerly word parsing, that's because it is. So goes statutory interpretation, and often, diligent lower-court judges don't predict the Supreme Court's reaction accurately. Wood didn't think the high court had previously answered the question before her about the Hobbs Act. So she based her ruling on past rulings in her own circuit. That is the correct and standard operating procedure in the appeals courts. In rehearsing the 7^th Circuit case law that led to her result, Wood doesn't sound unhinged or activist. She sounds like a careful appeals court judge.

It also matters that before the Supreme Court's 2003 ruling in Scheidler, Congress gave abortion clinics their own statute for combating violence. As Ginsburg mentioned, the Freedom of Access to Clinic Entrances Act authorized both criminal prosecution and civil penalties for protesters who use force, threats, or property damage to interfere with access to abortion clinics. The clinics didn't need to stretch RICO any more.

Maybe that's why the fight in Scheidler seems long ago and far away. Will the Republicans try to attack Wood for it if Obama taps her? Undoubtedly. But maybe that only goes to show how few wedges they have to work with.

This piece also appears in Double X.

Correction, May 12, 2009: The article originally stated that Judge Wood wrote the 1992 panel opinion. She did not. She joined the 7^th Circuit in 1995. (Return to the corrected sentence.)