Transcript

IN THE SUPREME COURT OF THE UNITED STATES

NATIONAL ORGANIZATION FOR WOMEN, INC., ETC., ET AL. Petitioners v. JOSEPH SCHEIDLER, ET AL.

No. 92-780

December 8, 1993

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:01 a.m.

APPEARANCES:

FAY CLAYTON, ESQ., Chicago, Illinois; on behalf of the Petitioners.

MIGUEL A. ESTRADA, ESQ., Assistant to the Solicitor General, Department of Justice, Washington D.C.; [ILLEGIBLE WORD] amicus curiae, supporting the Petitioners.

G. ROBERT BLAKEY, ESQ., Notre Dame, Indiana; on behalf of the Respondents.

PROCEEDINGS

10:01 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 92-780, National Organization for Women, Inc. v. Joseph Scheidler.

Ms. Clayton.

ORAL ARGUMENT OF FAY CLAYTON ON BEHALF OF THE PETITIONERS

MS. CLAYTON: Thank you, Mr. Chief Justice, may it please the Court:

QUESTION: Ms. Clayton, before you start, could I ask precisely whom you represent here?

MS. CLAYTON: Yes, Your Honor. I represent the National Organization for Women in its capacity as a representative of its female members who might use the clinic service -- the clinic services, and not in it's own capacity on the RICO claim. We did have NOW in its individual capacity on the antitrust, which may have given some confusion.

Of course, in addition I also represent the clinics, Delaware Women's Health Center and Summit, who have standing in their own right and who also represent a class of all similarly situated clinics.

QUESTION: So NOW, using the initials, is definitely a party to this proceeding here.

MS. CLAYTON: Yes, it is, Your Honor. It's seeking to protect the rights of its women members. And in particular it's just seeking the injunctive relief, it's not seeking damages for those women. The clinics, of course, are seeking damages for themselves and all similarly situated clinics.

Your Honors, this case involves forcible violent conduct by a highly structured enterprise called PLAN, an enterprise with a very clearly defined goal, to force every women's health center that offers abortion out of business by whatever means are necessary, including terrorist tactics.

Our case arises under RICO, which doesn't say a word about economic motive, and the question before this Court is whether to apply the statute that Congress wrote or amend it judicially to add this unstated requirement.

I'd like to discuss three points this morning. First, that the text and structure of RICO do not allow for an economic motive requirement. Second, that to apply the statute as Congress wrote it easily comports with the First Amendment. And third, that an economic motive requirement would be bad policy in any event.

Starting with the text, we bring our case under section 1962(c) of RICO, which doesn't mention economic motive, and neither do the two terms where the lower court claimed to find this requirement. Both "racketeering activity" and "enterprise" are terms that Congress expressly defined. They're terms that this Court has called broad.

And in the Sedima case, this Court pointed out that "racketeering activity" consists of the commission of the predicate acts, no more and no less. And in H.J. the Court recognized that this generous definition would purposefully attract a broad array of perpetrators.

We know that Congress did not want to limit racketeering activity to only those crimes that were economically motivated, because when Congress chose the 30-some-odd crimes to include in RICO as the predicate acts, it included numerous crimes that have no necessary relation to money at all. In fact, three of the first four, arson, kidnap, and murder, have no necessary relation to money. And none of the predicate acts is any less a crime if it's committed for some other reason like power, hatred, or revenge.

QUESTION: Kidnapping is usually done for money, isn't it?

MS. CLAYTON: Your Honor, it sometimes is and it sometimes isn't. The news the other night indicated there's a new theory about the Lindbergh kidnapping, and it's my suggestion that if it turns out that it was a relative who did it because of a spurned love affair, that would be just as much kidnapping as if it were Mr. Hauptmann who had done it for the ransom.

The fact is that kidnapping doesn't require money. That's not an element of the crime. It sometimes includes it, it sometimes doesn't. Sometimes even organized crime, in terms of mobsters, kidnap people to protect their turf or to avenge an insult, or for some other reason.

QUESTION: Ms. Clayton, it isn't really the predicate acts so much that we're concerned about, as the organization which allegedly is supposed to have committed the predicate acts.

MS. CLAYTON: Well, Your Honor, that is the alternate source that the lower court --

QUESTION: Right. And Congress does use the word "enterprise" for that.

MS. CLAYTON: It certainly does, Your Honor.

QUESTION: And one of the popular proposals that's given political discussion nowadays is so-called enterprise zones. What do you think they relate to, 4-H Clubs, voluntary associations, or commercial associations essentially?

MS. CLAYTON: Well, as used in the enterprise zones that we have in Chicago, they relate to commercial businesses. But Congress defined the term --

QUESTION: And free enterprise, the term "free enterprise" is used the same way. It doesn't mean, you know, freedom to associate; it means freedom to conduct business activities.

MS. CLAYTON: Enterprise has many definitions, including that, Your Honor, that's correct.

QUESTION: One of -- one of the meanings of "enterprise" at least, one of the possible meanings of "enterprise" does have a commercial element to it.

MS. CLAYTON: Unquestionably. But Congress defined the term "enterprise." It didn't leave it to our imagination. It didn't even leave it to dictionary definitions.

QUESTION: Define it. Now, it defines a number of terms in 1961 where it says "racketeering activity means," and it says what racketeering activity means. But for enterprise it says "enterprise includes" --

MS. CLAYTON: That's right, Your Honor.

QUESTION: And then it lists a number of things it includes: an individual partnership, corporation, association, and so forth.

MS. CLAYTON: And as this Court said in Turkette, that word "includes" means that there are no restrictions on the word "enterprise." It includes any association, in fact.

QUESTION: Well, but suppose the -- suppose the word -- just to make the point I'm asking you about clearer, suppose that the phrase used were not "enterprise" alone but "business enterprise."

MS. CLAYTON: We'd have a very different situation then, Your Honor.

QUESTION: Yes, but -- yeah, and if that were the case and you had this same what you call definition in 1961(4), suppose it read, "business enterprise" includes any individual partnership, corporation, association, and whatnot, would you think that to say it included all of those things would mean that it read out the business, the word "business"?

MS. CLAYTON: Your Honor, I would suggest that if Congress had defined the term that way, that would have been an ambiguous definition. We know that in a predecessor --

QUESTION: Well, but that depends on whether you think enterprise --

MS. CLAYTON: Not at all, Your Honor.

QUESTION: -- Has a business connotation to it or not.

MS. CLAYTON: Not at all, Your Honor. I would suggest that in Your Honor's hypothetical, business enterprise seems a little inconsistent with associations, in fact which, as this Court pointed out, is an unambiguous term. The Court has said that.

The predecessor draft of RICO did use -- one of the predecessor drafts, in fact three of them used the term "business enterprise." Not as part of a definition, I think that would have been confusing; they used it as part of the statutory text. If 1962(c) said business enterprise, we couldn't be here, there's no question. But that particular language was dropped by Congress. It was dropped from Senate bill 1623. It was dropped from Senate bill 2048 and 2049. And the version that Congress enacted, Your Honor, doesn't have "business" in it.

QUESTION: My point is that if you believe that "enterprise" means the same thing as "business enterprise" -- it doesn't say it as strongly, but it means the same thing -- you acknowledge by what you've just said that 1961(4) alone would not eliminate the business connotation of it.

MS. CLAYTON: Your Honor, I do not concede that business means -- that enterprise means business. It includes business enterprises, it includes nonbusiness enterprises. In fact, the argument that Your Honor is articulating is so much like the one that this Court rejected in Turkette, where it refused to limit RICO's enterprises to legitimate enterprises.

The argument was meant -- the argument was made that the enterprise definition meant only legitimate enterprises, but this Court said if Congress had wanted to limit the statute to only legitimate enterprises, it could have used the word. Here not only did Congress not include the word "business enterprise" in either the statute itself or the definition, Justice Scalia, it actually dropped that term. And that shows, one, that Congress knows how to use the words when it wants to limit a statute. And, two, it made the decision not to do that.

QUESTION: Maybe it didn't want -- it didn't business there because they didn't think it had to be a business, but it had to -- still had to have a commercial motivation, which is what "enterprise" connotes.

MS. CLAYTON: Well, Your Honor, Congress didn't say --

QUESTION: You had an antitrust claim below, didn't you?

MS. CLAYTON: We did, Your Honor, and we --

QUESTION: Now, the antitrust laws don't say anything about commercial motivation either, do they?

MS. CLAYTON: They certainly don't. And it's absolutely --

QUESTION: But do we -- do we apply them against, let's say, grape boycotts --

MS. CLAYTON: Your --

QUESTION: -- If a group of citizens for political reasons wants to boycott grapes, that's certainly a contract combination or conspiracy in restraint of trade. Do we apply the antitrust law to them?

MS. CLAYTON: Your Honor, the answer to your question is no, but not because of the definition of what antitrust covers, but because of the First Amendment. The First Amendment doesn't let the antitrust laws or any laws cover protected speech like a boycott, like a nonviolent boycott.

QUESTION: A boycott's not speech. It's an action.

MS. CLAYTON: Your Honor, the antitrust laws are crystal clear that nonprofit organizations are covered. This Court said that in D.C. Lawyers, it said it in Professional Engineers, and it said it from time immemorial. The antitrust laws are clearly applicable to nonprofit organizations.

QUESTION: Of course, the words "trade or commerce" have a business aspect to them too, don't they?

MS. CLAYTON: They do, Your Honor. And you know something, it's very important, Justice Stevens, to remember that RICO does have one requirement. It requires effects on business or property. It requires in section 1964(c) that for a plaintiff to come before this Court in a private case it must have been injured in its business or property. Congress spelled that out right in the statute, unlike this missing motive requirement which doesn't appear anywhere.

And by the way, Justice Stevens, that economic effect is something that even the lower court recognized we unquestionably have, because this nationwide campaign of terror has caused and continues to cause enormous business and property damages to our plaintiffs.

Another reason that we should not infer an economic motive requirement into a statute that is totally devoid of one is RICO's liberal construction clause. This clause shows that Congress purposefully chose breadth over narrow constructions. And as the Court pointed out in Russello, this is an unusual provision, particularly for a criminal statute, and it shows Congress' choice to be expansive, particularly in the remedial provisions of RICO's application.

I would like to address the First Amendment issue. Justice Scalia's question about the antitrust laws certainly brought that into play. And the respondents have argued here that their conduct is really speech, but both of the lower courts recognized how false that claim was.

PLAN, as we've pled in our complaint, is dedicated, committed to mob violence, to the use of any and all means necessary to force the clinics and patients to give up their protected rights. PLAN ridicules peace-loving opponents of abortion. It calls them wimps. PLAN says it will only answer to higher laws, which are articulated by the leaders of PLAN. It will not --

QUESTION: Well those are some of your claims. But you assert that you would -- you would have a right to win here if you -- if you proved acts of extortion --

MS. CLAYTON: That's correct.

QUESTION: -- Which you would define to include acts which intimidate someone into -- simply into not doing something.

MS. CLAYTON: Well --

QUESTION: Extortion doesn't even mean you have to get money or property from someone, in your view.

MS. CLAYTON: That's right, Your Honor, on the first point at least.

QUESTION: But just intimidating them into not doing something.

MS. CLAYTON: One does not have to get property. One has to obtain property, which has been interpreted by the courts, meaning to make someone give up property. In Green this Court said the emphasis is on what the victim loses.

QUESTION: You're getting it is the same as somebody else giving it up.

MS. CLAYTON: Not always, Your Honor. When somebody extorts --

QUESTION: Not always, just for purposes of this statute.

MS. CLAYTON: In this case, Your Honor, there actually is some gain, because in many cases the clinics run by PLAN and its coconspirators actually get the business opportunities in the form of patients who they take to the -- the antichoice clinics.

QUESTION: Well, let's say that I want to stop somebody -- just to take it out of the abortion context, which tends to inflame -- inflame emotions, suppose I want to get somebody to stop selling grapes and I throw pickets across the street. And simply in order to save -- to save -- urging other people to boycott. Simply in order to save money, the supermarket, whoever, says it's just not worth it, we won't sell grapes. They've been intimidated from selling grapes, isn't that right?

MS. CLAYTON: It's protected by the First Amendment, Your Honor. And in that example, that conduct is not extortion because First Amendment protected speech can never be extortion. If those same boycott -- if those same protesters took their picket signs and hit the -- their -- the grocery store on the head or forcibly blockaded the store so they could not do business and thus deprived them of their property right, then we would have extortion. But peaceful picketing can never be extortion. It can never be a predicate act of any sort under RICO.

QUESTION: Ms. Clayton, do we have -- do we have a ruling to review on that issue, as distinguished from the one that you were just discussing with Justice Scalia?

MS. CLAYTON: Thank you, Justice Ginsburg. No, we do not. That was offered as a question for review by the respondents, but the Court did not see fit to take that issue.

And, in fact, Your Honor, even if the Court were to totally disregarded Hobbs Act extortion, we have so many other predicate acts that arise under Federal pleading standards, that arise from the very same allegations of the complaint -- I mean there's Travel Act violations, State law extortion, section 659, arson, kidnap, a lot of others. So even if we totally put aside the Hobbs Act extortion issue, we have far more than the two required predicate acts.

QUESTION: Well, and if -- if we rule as you ask us to in the question presented, that does not prevent the defendants from raising First Amendment defenses below.

MS. CLAYTON: Your Honor, of course it doesn't. We treasure the defendants' First Amendment rights like we treasure our own, and we do not want to in any way infringe on those rights. We have tried in the discovery and the district court -- and as the district court recognized, we've drawn such a wide margin around protected speech.

When they picket, when they pray, when they leaflet, when they petition Congress, this is protected, this can never be extortion, it can never be a predicate act. But when they give up that protected form of speech and they turn to force and violence and the use of fear of more force and violence, particularly in a context where we have arson, we have killings, we have threatened killings, that -- once and a while their advocacy can cross the line, as this Court explained in Claiborne Hardware and in Meadowmore, it can cross the line --

QUESTION: But those issues are not presented here.

MS. CLAYTON: They're not, Your Honor. They're not.

QUESTION: The question is on the definition of enterprise and pattern of racketeering activity and whether economic motivation is required for those, and that's it, as far what is before us to review this morning.

MS. CLAYTON: That's exactly right, Your Honor. Those are the precise issues. And as I -- I believe I've explained, the statute and the structure of RICO do not allow for it. Looking at the structure, we see the Organized Crime Control Act does have some business enterprise limitations, RICO does not. There are a host of policy reasons also for not inferring an economic motive.

If the Court doesn't have any further questions, I would like to save my remaining time for rebuttal.

QUESTION: Very well, Ms. Clayton.

And Mr. Estrada, we'll hear from you.

ORAL ARGUMENT OF MIGUEL H. ESTRADA ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS

MR. ESTRADA: Thank you, Mr. Chief Justice, and may it please the Court:

For three reasons, RICO does not require a prosecutor or a plaintiff to prove an economic motive. First, there is no textual basis for such a requirement. Second, this Court has already rejected similar nontextual limitations on the scope of RICO which were also claimed to derive from Congress' purpose in passing the statute. And third, the economic motive requirement is elusive and really has little to do with the societal effects of systematic ongoing crime, which is what the statute is about.

As to our first point, the respondents in this Court have not identified the single one textual home of the economic doctrine.

QUESTION: Just -- but Justice Scalia just did. What do you say about the word "enterprise?"

MR. ESTRADA: The word "enterprise," Justice Stevens, is defined by statute, and it is not new to this Court. The notion that the word "enterprise" can include this doctrine really comes from the Ivic case in the Second Circuit, where the Government tried to use the statute to prosecute terrorism in New York City. And in that case, the Court did point to that word as a -- [ILLEGIBLE WORD] basis for the doctrine. Everything --

QUESTION: In an opinion by --

MR. ESTRADA: Judge Friendly.

QUESTION: By Judge Friendly, and a pretty good panel. Judge Oaks, right, and who was the third one, Judge Feinberg, Chief Judge Feinberg?

MR. ESTRADA: They're all good judges, Justice Scalia.

(Laughter.)

MR. ESTRADA: And even good judges sometimes get it wrong.

(Laughter.)

MR. ESTRADA: Everything the court said, Judge Friendly and all, in the Ivic case had been foreclosed by this Court in the Turkette case. There is practically no argument in the Ivic opinion that does not have a counterpart in this Court's opinion in Turkette.

And the failure of the enterprise element to give content to this doctrine I think is not only demonstrated by what the Court said in the Turkette case, but also by what the Second Circuit itself did with the doctrine 3 months later in the Bagaric case.

QUESTION: What did Turkette say about enterprise?

MR. ESTRADA: The Court in that case noted that the definition by Congress is very broad, and it certainly includes any entity or group of individuals associated in fact, which, the Court noted, includes any group that associates for a common purpose. The Court said nothing about what the nature of that purpose must be, and that's all the Court said.

And, in fact, as the lower courts have recognized, pinning this doctrine on the enterprise element would really cripple the role that Congress thought RICO would play. It would take out of the reach of RICO Government entities, courts, nonprofit organizations, all of which have uniformly been recognized by the lower courts to be RICO enterprises, and which even Respondent Scheidler, I think, at page 14 of his brief concedes are RICO enterprises.

In addition, one of this Court's cases, the H.J., Inc. case, had a Government agency as a claimed RICO enterprise, and that certainly gave no pause to the Court in ruling that the complaint in that case was sufficient. Now --

QUESTION: How do you -- how do you, Mr. Estrada, explain our more limited scope accorded to the Sherman Act?

MR. ESTRADA: Well --

QUESTION: Not expanding that to the limit of the meaning of its words.

MR. ESTRADA: Well, there is a difference in the Sherman Act, Justice Scalia, in that it really does tend to make unlawful things that in the absence of the act could be done lawfully. RICO takes a different tack, and it starts with conduct that is already criminal. And while Congress said that as to the civil side of RICO, it was looking to the antitrust model, this Court has recognized that that is not a model that the Court should follow in all contexts.

For example, in the Sedima case a claim was made that based on the antitrust laws which called for some form of antitrust injury, there should be a requirement in RICO that there be racketeering injury. And this Court turned down that argument, saying that racketeering activity is nothing more and nothing less than the commission of the predicate crimes.

Thus while Congress did have the antitrust model of civil damages in mind, I don't think this Court has ever ruled that it -- that every aspect of RICO is ruled by what Congress has done in the antitrust areas. They're similar to some extent, but they're not identical.

That brings me --

QUESTION: The Government supports the interpretation of extortion that the court below adopted as well, doesn't it?

MR. ESTRADA: We haven't briefed --

QUESTION: That is to say you don't have to obtain property?

MR. ESTRADA: We have not briefed the issue, Justice Scalia, but it -- because it is not the question on which the Court granted cert. And in our view, whatever --

QUESTION: Well, it is -- it is an issue which, if -- if supported, would sustain the judgment below, isn't it?

MR. ESTRADA: No --

QUESTION: And therefore we could entertain it.

MR. ESTRADA: You could entertain it. But if ruled on by the Court, and even if ruled on favorably to the respondents, it would not, in the end, support the judgment, because in our view the facts pled in the complaint, though not the legal theory, do show other predicate acts like arson and other crimes that are predicate acts under RICO, which though not pled as a legal theory, are pled as facts and which would be -- and which, in our view, would be sufficient to support the judgment on the pleadings.

Though we have not briefed the Hobbs Act issue, I should say that it is far from clear that nothing was obtained in this case, taking the claims in the complaint in the light most favorable to the plaintiffs. In the Green case, this Court essentially held that if I put a gun to your head and have you give your wallet to the first person who comes down the street, that is extortion under the Hobbs Act, even though I get nothing physically.

And the reason for that has to be that because even though I have not myself obtained your wallet, I have obtained the right to control the disposition of your wallet which is, in itself, a property right. You have a right to give your wallet to whom you please, or even keep it yourself, and that's what you usually do all the time. But if I put a gun to your head and make you give your wallet to the first person who comes down the street, I have taken to you a right to control who should have your wallet. I have chosen the person who should have your wallet.

And that, in itself, is an important right of your property right to your wallet and is itself a property right. So even though we have not briefed it --

QUESTION: Mr. Estrada, why I'm concerned about it is that the combination of that broad interpretation of extortion, plus the interpretation of RICO that the petitioners favor here, leaves one in a situation where any -- any national organization which has adherents and hangers-on who may commit a tort, hitting someone with a picket sign or trespassing upon property, by committing an unlawful act can be charged with committing extortion even though they're not trying to get money.

And this means that any -- any national organization demonstrating for some political cause exposes itself to lawsuits nationwide -- which they may win, but they may lose, but it's an enormous amount of expense -- by people claiming that that is the very purpose of the organization, to extort.

And it makes -- if it were applied to the NAACP in the days of civil rights activism, it would have been very debilitating. Does it not concern you that the combination of the two can have that effect?

MR. ESTRADA: Justice Scalia, I don't think that anyone here has said anything different about the governing constitutional standards, and I don't think anyone views them any differently as the case comes to the Court. And there is no question that, as with every other area, there will be issues at the margins. However, the issue here is whether an economic motive doctrine should be implied to take that danger out of RICO. And in our view, it would be a poor proxy for that danger and it's not really the issue at this stage on the pleadings.

Thank you.

QUESTION: Thank you, Mr. Estrada.

Mr. Blakey, we'll hear from you.

ORAL ARGUMENT OF G. ROBERT BLAKEY ON BEHALF OF THE RESPONDENTS

MR. BLAKEY: Mr. Chief Justice, and may it please the Court:

This appeal is about a misguided effort by two clinics to invoke two Federal statutes, two powerful Federal statutes, the Hobbs Act and RICO, in the context of a social protest movement. Under their construction of the statute, it would be applicable not only to a Gotti or a King, but to a Ghandi or a Chavez. That's a result the Congress specifically intended to avoid in 1970. This appeal runs squarely into four -- three rock-like noes: no extortion, no economic motive, and no standing.

Let me turn first to the question of extortion.

QUESTION: Mr. Blakey, I assume that you're going to deal, both with respect to what you said about standing and what you said about no extortion, with our function as a court of review rather than as a court of first view. And as I understand it, there was no ruling on standing in the district court or in the court of appeals.

MR. BLAKEY: Let me answer your second question first, Your Honor. The question of standing is always before this Court. It is jurisdictional. Even if not raised below, you must face it here.

QUESTION: You are quite right that it's jurisdictional. But it's usual that we have the benefit of a prior decision on that question. It's not common that this Court makes the ruling for the first time on an issue of standing. Was this raised in the district court?

MR. BLAKEY: To my knowledge -- Your Honor, the posture of this case changed over time. For example, at the time it was in the circuit court NOW was a plaintiff under the antitrust statute and had standing.

When this Court declined to grant cert on the antitrust question, NOW then no longer was a plaintiff in the antitrust count, and its lack of standing in this Court is directly related to the fact that it is not a plaintiff in the RICO count. That's something that could not have been raised in the lower court simply because their lack of standing on RICO was not involved in their original petition.

QUESTION: I thought that Ms. Clayton had explained, in answer to Justice Blackmun's question, the capacity in which NOW is appearing at this stage, as distinguished from its position as an antitrust claimant.

MR. BLAKEY: Well, if it is appearing as a representative of either the -- she is appearing as a representative of the two clinics. NOW has no standing. We would quarrel with the standing, first, of NOW because it is not a RICO plaintiff. We would quarrel with the standing of NOW in behalf of anyone else. This case was not certified as a class. They must first --

QUESTION: Was -- there was no ruling on that question.

MR. BLAKEY: That is correct, Your Honor.

QUESTION: So it's not as though you're here after there has been a denial of certification. At this stage, mustn't we assume that question in the light most favorable to the plaintiff?

MR. BLAKEY: Yes, but even on the face of this complaint, and certainly in light of the facts set out in the RICO cases statement, NOW has no standing, neither of these clinics have standing. And it is not only appropriate, but it's a duty on us, as an advocate of this Court, to draw that lack of standing to this Court's attention.

QUESTION: I appreciate that, Mr. Blakey, and I don't want to belabor this point. But you know that even for jurisdictional questions, this Court generally sits as a court of review.

MR. BLAKEY: Yes. Let me answer the first part of your question. The grant of cert -- contrary to Ms. Clayton's position is we did not seek a grant of cert. What we merely pointed out in our brief was that if this Court took the RICO question, it would face necessarily the question of extortion. And since we are respondents and not petitioners, we may defend the court below, the judgment of the court below, on any ground whether it was raised below or not, and in this case it was.

Our central and strongest argument is "no extortion." And there is no extortion in this case for two fundamental reasons. This statute, the Hobbs Act, was modeled on New York law. New York law was modeled on the common law. In 1865, the field code commentary carefully explained that the extortion provisions of that code was part of the property loss series: embezzlement, larceny, robbery and extortion. Each requires a common law taking, a trespatory taking.

What is happening in this case is they are transposing a clear common law term, extortion, and making it into a modern statutory term, coercion. And they're doing that by taking the concept "property," which starts out to mean tangible property. You can interpret it to be intangible property. You can interpret it to be intangible rights. And finally, the right is not obtained but the other is deprived of it. That particular process of interpretation is not reading a statute, it is redrafting it.

QUESTION: Mr. Blakey --

QUESTION: Mr. Blakey --

QUESTION: Mr. Blakey, I thought we had a case before us that comes here on a motion to dismiss. I mean that's what happened below, pleadings and a motion to dismiss. And I thought that the petitioners -- certainly Mr. Estrada, as amicus, said that there are other allegations of predicate acts other than extortion in the pleadings that would be sufficient to withstand a motion to dismiss.

Now, I assume all these things can be addressed in the courts below if it gets back, if it survives the motion to dismiss. I don't understand why we're really addressing that here.

MR. BLAKEY: Your Honor, it is correct to say that the lower court dismissed this under Rule 12. But the lower court relied on materials outside of the pleading, to wit, in the RICO cases statement.

QUESTION: Well, but do we have to do that? I mean, do we have to do more than look at the pleadings and are petitioners correct that in those pleadings, at least, that there are allegations of arson and kidnapping and one thing and another, that fall within the --

MR. BLAKEY: If you confine yourself to the four corners of the complaint.

QUESTION: Yeah.

MR. BLAKEY: There's not one word about arson, kidnapping, murder, terrorism, or any of the violent acts being alleged here. The underlying facts in this case are no more than, no less than --

QUESTION: But is there not -- Mr. Blakey, is there not the counterpart of a bill of particulars here in the RICO statements that were made?

MR. BLAKEY: Your Honor, the RICO cases statement that was filed was filed after two motions were made. One was a motion for a more definite statement under Rule 12. That function would be, really, to explain what was already in the complaint. You can't amend a complaint by filing an answer under Rule 12.

It was also filed in response to a motion under Rule 16, as to control the docket, and the function of the RICO cases statement here is an admission by a party opponent. And this judge asked, in February these plaintiffs, tell me your facts consistent with Rule 11 that you rely on. Tell me the statutes that you rely on. They answered that in the court below, and the only answer they gave was the Hobbs Act.

We didn't hear one word about murder. That's outside the record. About terrorism, which happens not to be a predicate offense -- we didn't hear anything about bombing. All we heard was these acts violate the Hobbs Act.

QUESTION: But, Mr. Blakey.

MR. BLAKEY: Not State extortion, not coercion, but the Hobbs Act.

QUESTION: But, Mr. Blakey, just looking briefly at the district court's opinion, the ground of decision both in the district court and in the court of appeals was the lack of an economic motive, as I understand it.

MR. BLAKEY: That's correct.

QUESTION: And if that's correct, you win and there'd be no leave to amend and the ballgame is entirely over. But if there is a dispute about fringe facts, I would suppose the district judge would let them amend and add these additional things that might not be a complete termination of litigation.

MR. BLAKEY: Your Honor, this is after almost 5 years of discovery.

QUESTION: It's a judgment for the district court.

QUESTION: Yes, but on the specific ground that we've granted certiorari to decide, that's -- both lower courts decided that issue, and it's a very important issue.

MR. BLAKEY: Whether or not they could amend is not in front of this Court, because they never made a motion to amend below.

QUESTION: Because, they were -- they lost on the ground of no economic motive.

MR. BLAKEY: Let me turn, Your Honor, if I might, to the economic motive.

QUESTION: I wish you would, because that's what we really granted cert to do -- to consider.

(Laughter.)

MR. BLAKEY: This statute can be summed up in two words, illicit gain. The concept of illicit gain pervades the statute, the title, the findings, the definitions, the operative language in the statute, the criminal remedies, the civil remedies, statutes with which it is in pari materia, and the legislative history.

The precise words used in each section varies with the purpose of each section, but this statute can be summed up in two words, illicit gain. Look at the title. This is the label on the bottle. It says Racketeering Influenced and Corrupt Organizations. Racketeer means extortion and fraud. Corrupt means venal. There right in the label of the bottle is the commercial notion of gain.

Look at the findings. There are five findings in this statute: the last deals with legal defects; the first two deal with obtaining and utilizing illicit gain; the second two deal with the effects of it when you invest and weaken.

Look at the definitions in the statute. The word "person" describes the class who can sue and be sued, or be indicted. It is, by the definition of the statute, limited to people who can hold a beneficial interest in property.

Look at the concept of enterprise as it's found in the statute. Enterprise is illustrated in the statute, not defined. It is appropriate therefore to look to its common everyday meaning. Its common everyday meaning is precisely that of a business venture.

QUESTION: Do you agree, though, that if you look specifically at the text of 1262(a), (b), and (c), that in each of those instances it is certainly possible, consistently with those texts, for there to be an enterprise which is not itself devoted to economic gain?

MR. BLAKEY: That's correct.

QUESTION: Okay.

MR. BLAKEY: My point here is precisely that of Justice Cardozo in American Knife. To interpret this statute and understand it, let's take a look at its average case, not the exceptional case. The average case within the statute is going to be a commercial enterprise engaging in commercial activity.

There are penumbra issues such as a government, and -- which is clearly within the statute, and was recognized by Judge Kaufman in Anginelli, in the course of the Ivic opinion. Nothing that we say here today should be understood to suggest that governments cannot be enterprises, but only when they engage in or they are utilized to engage in a pattern of racketeering activity that has a commercial dimension.

QUESTION: But you're -- again, I don't think you're doing this, but you're not suggesting that the only noncommercial example of an enterprise which might fit under (a), (b), or (c), would be a government.

MR. BLAKEY: No, no.

QUESTION: That is simply one --

MR. BLAKEY: Sheerly that to respond to the Government.

Let me go through the text of the statute, the opportunity --

QUESTION: I don't understand your test, Mr. Blakey, and both the Government and the petitioner assert that it's -- it's too confusing to work with. What is your test about whether the requirement of commerciality, or whatever you want to call it, is satisfied?

MR. BLAKEY: Well, what I think you have to meet, Your Honor, is the language of the statute. What -- the phrase commercial dimension is something that pervades the statute as a whole. You have to go -- for example, to recover damages in this case, you must show injury to business or property. The commercial dimension is the injury to business or property.

In the example of the criminal sanctions, the characteristic criminal sanction of this statute is a forfeiture. If you take the profit out of crime, you presuppose a profit-making crime.

QUESTION: Well, how do I know whether it's an enterprise within the meaning of the act?

MR. BLAKEY: It's within the meaning of the act, which means you must sit it in the text as drafted.

QUESTION: Of course.

MR. BLAKEY: And what we would do --

QUESTION: Tell me -- yeah.

MR. BLAKEY: What we would do in -- and let's turn right to section 1962(c). Section 1962 says: "Any person employed by or associated with an enterprise that conducts that enterprise's affairs by a pattern of racketeering activity." Wherein lies the commercial dimension? The commercial dimension in that provision lies in the word "affairs." Affairs means commercial or professional business, as a matter of plain meaning. The set --

QUESTION: Then, why don't you -- why don't you go the -- why don't you go the whole hog, then, and say that the -- that it is an absolute requirement that the commercial enterprise in fact -- that the enterprise be commercial, but you instead have an alternative definition. You say, well, it would be all right if the acts themselves, if the predicate acts were commercial. Why -- why -- if your argument is as strong as you say it is, why do you have this fallback position?

MR. BLAKEY: Your Honor, let me explain it this way. We deal here with the set. The set is activity. The subset is racketeering activity. The sub-subset is racketeering activity in affairs. It is quite possible to have a noncommercial enterprise that engages in noncommercial racketeering activity, but not in its affairs. The affairs is the word of limitation that confines 1962 --

QUESTION: The Union Trust Fund would be an example, I presume.

MR. BLAKEY: Yes, yes.

QUESTION: Which is certainly one of the things they were concerned with.

MR. BLAKEY: A benevolent association.

QUESTION: Yeah.

MR. BLAKEY: A benevolent association may very well have a large pension fund and the mob wants to take it over. That's an enterprise. But the reason they want to take it over and the way they must take it over to fall within RICO is by engaging in, for example, extortion. And extortion is a property-obtaining notion. It's not coercion, which is conduct-forcing notion.

And if there were any doubt about the text of the statute, and I think when you see the word "income" in (a), "interest or control" in (b), and "affairs" in (c), there ought not be any doubt --

QUESTION: Just a minute, Professor Blakey, let me just be sure I understand. Has the word "affairs" been relied on in the opinions adopting your position?

MR. BLAKEY: No.

QUESTION: So this is debateable. Thank you.

MR. BLAKEY: No. No, Your Honor, wisdom comes so late in the affairs of man.

(Laughter.)

MR. BLAKEY: That we'll not turn it down simply because it --

QUESTION: That doesn't respond to the question Justice Scalia has raised too. That's a concern, is that the Seventh Circuit's original position seemed rather clear, but the Second Circuit seemed over the years to have somewhat withdrawn from the economic test. And it's kind of hard to know exactly what the test is.

MR. BLAKEY: Well, if you -- a careful reading of the Seventh Circuit's opinion is that it adopted the Ivic-Bagaric-Ferguson line of opinions. And what happened from Ivic to Bagaric to Ferguson, the use of the word motivation was thought, in retrospect, to be inappropriate because it might deal with subjective motive. Therefore the test changed from Ivic to Bagaric and became an objective characterization.

And then the question of degree came up, which the Government has raised. In Ferguson it was clarified to be any. It's not a question of degree, it's a question of kind.

QUESTION: The -- one of the cases that troubles me if you're trying to think through this thing, say you've got a terrorist organization -- because we're not just dealing with the abortion situation, but terrorism and other things. And say that their ultimate motive is -- the purpose of the crusade, whatever it is, but they're doing these activities to get some money to help finance purchasing guns that the IRA needs and that sort of thing. Would the mixed motive qualify for -- under your test?

MR. BLAKEY: Yes. And the cases are clear. Precisely in Bagaric it was the same basic terrorist group that was involved in Ivic, but in Bagaric they were only -- in Ivic they were only engaging in homicides. In Bagaric they were engaging in classic extortion, it was property obtaining.

This statute has been successfully applied to terrorist groups where they engage in commercial activity, for example to raise money. The Order, an antisemitic group in the West that went around -- you may recall, killed Alan Berg simply because he was a Jew.

QUESTION: Commercial is really not the right word. I mean, you would also apply it to a -- to a terrorist group that robs banks, I assume, wouldn't you?

MR. BLAKEY: The word I would prefer --

QUESTION: It seems strange to call that a commercial activity.

MR. BLAKEY: Your Honor, I'm kind of stuck with the language in the cases. I would suggest to you that the two words that summarize the statute is illicit gain. In fact, when you find out the sense in which they're using commercial motivation or mercenary purpose or financial purpose, what they, in fact, in the cases have said meets it is some kind of a gain, a robbery that produces money. For example, in the Order case, they were robbing banks and they were prosecuted for robbing banks

QUESTION: But then you have to give away enterprise. You have to give away your enterprise argument. I mean, you can rely on affairs, but you've given away enterprise, because you --

MR. BLAKEY: Your Honor, I don't --

QUESTION: -- Don't pull a bunch of free enterprises and a bunch of bank robbers. Enterprise zones is not -- is not bank robbers.

MR. BLAKEY: Your Honor, I would prefer not to give up anything.

(Laughter.)

MR. BLAKEY: What I'm suggesting to you, if I may borrow the language of this Court, is the interpretation of this statute is a holistic endeavor. We've got to look at the entire text, the punctuation, the words, the structure.

QUESTION: But what if a series of very dramatic illegal acts in support of a cause generate large contributions to the cause from third parties, would that provide the economic requirement that you're talking about?

MR. BLAKEY: No.

QUESTION: Even though they're publicized and deliberately done for that purpose?

MR. BLAKEY: No.

QUESTION: Why wouldn't it be? Because it's indirect or in --

MR. BLAKEY: Well --

QUESTION: Because it would be insufficient to get you over the RICO standing?

MR. BLAKEY: Well, there are two answers to it. In this case that argument was made. To show in this case economic motive, you can do it either in the predicate acts or in the enterprise. The predicate act extortion requires the money to be obtained from the victim. Now the question is if the money was obtained merely by donations from third parties, this is a situation where precisely in this record it was held, or it was found that there's no proximate cause relationship between third-party donations and --

QUESTION: Well, I'm not suggesting the facts of this case are strong enough, but I was thinking of the hypothetical where they said we are going to burn down a church, or something, to demonstrate our strong feelings about this, and we hope everybody who reads about it will send in $100 to such and such an address.

MR. BLAKEY: As you move in that --

QUESTION: Would that qualify --

MR. BLAKEY: As you move in that direction -- and the question is how far you take me.

QUESTION: Yeah.

MR. BLAKEY: You will make those third party donors coconspirators and aid-and-abettors. They're the people who, in effect, are hiring this crime to be done.

QUESTION: Even though they send the money in after the fact only?

MR. BLAKEY: Well, it's quite possible to ratify a crime. It's certainly possible to join the conspiracy afterwards.

Let me take two items in addition to those in the text. I think this is a text-based argument. It rises from a holistic view of the statute, of the actual language employed in each section. Let's look and see whether this is confirmed -- not independently established, but confirmed by the legislative history.

Put yourself back in 1970. The issue that burned in this country then was not abortion, not animal rights, not fossil fuels, not fur and the fur industry, but the war in Vietnam. This statute was proposed and it was objected to by the American Civil Liberties Union specifically on the grounds that the definition of racketeering activity was so wide open it might apply to the takeover of the Pentagon and to the takeover of the University at Columbia.

Congress immediately turned to narrow that definition, with a specific intent of avoiding the application of RICO to demonstrations. Not abortion demonstrations: what they had in mind was the war in Vietnam. And they selected -- this is now the problem of set and subset again. The set for this are all State and Federal crimes. They didn't put them all in, they selected them. And what was the principle of selection? And this can be determined by looking at the statutes, not the legislative history.

QUESTION: But the response to that concern was not any narrowing of this definition of enterprise which, on the face of it, is about as broad as you can get. Includes any -- they didn't -- in response to the concern that you just mentioned, what was the change that was made?

MR. BLAKEY: The change was not to the definition of enterprise. But, Your Honor, enterprise sits in a context, and if you don't have a pattern of racketeering activity what good does it do to have an enterprise. And what we're looking at now is what Congress' intention was in 1970. They modified the definition of pattern of racketeering activity specifically to avoid the application of this statute to the demonstrations on the war in Vietnam.

QUESTION: And what was the precise modification?

MR. BLAKEY: They took the definition of racketeering activity, which included any crime dangerous to life, limb, or property -- dangerous to life, limb, or property, which clearly would have fit this facts, and they moved it down to specific crimes. And the specific crimes that they adopted was extortion, not coercion. In 1961 this country had promulgated in the criminal law community the model penal code.

Anyone familiar with the vocabulary of the model penal code -- and McLellan, Hruska, and Paff, the principal architects of this statute were familiar with the model penal code; they served on the Brown Commission -- knew the difference between extortion and coercion. When they put in extortion and leave out coercion --

QUESTION: Yes, but --

QUESTION: But that, it seems to me, contradicts your argument in which you pin your entire argument on the word "affairs."

MR. BLAKEY: Your Honor, this is holistically. You have to look at every word in context. I am --

QUESTION: Well, and I've been meaning to add as a footnote that murder is included. That's not necessarily an economic crime. It usually isn't in fact

MR. BLAKEY: If -- when you read the legislative history closely, you see that the addition of some offenses -- murder would be one, obstruction of justice would be another -- was added for the instrumental role -- not the direct role, but the instrumental role -- role they play in economic affairs, not independent.

QUESTION: Why isn't it -- why isn't it still the case that your -- the point of your argument is that extortion should be construed narrowly so that it does not include coercion, but that is irrelevant to the question of what enterprise means.

MR. BLAKEY: Your Honor, absolutely. But what I'm suggesting to you is you cannot do this word by word. You've got to do it line by line, text by text.

QUESTION: No, but Congress -- by the same token, Congress doesn't have to do the same thing three different ways. And if, in fact, it was addressing the concerns that the ACLU raised by its definition of predicate offense, that is not a premise for saying that it therefore also intended enterprise to be narrowed in the way -- with the limitation that you want to place on it.

MR. BLAKEY: Your Honor, I think the -- the limitation comes from the word "affairs" in section (c). It comes from "interest or control" in (b). It comes from "income" in (a).

QUESTION: Well, I would certainly feel betrayed if I were one of the Senators who favored a broader statute and the ACLU came in with objections and I conceded well, okay, to meet your objections what we'll do is we'll narrow the crime; we'll just have certain types of crimes instead of other crimes. And I thought that was the deal, and the ACLU says, yeah, that's good enough, okay, and then we all go home, and then it turns out that by narrowing the crimes I've also changed the meaning of the word "affairs."

MR. BLAKEY: Your Honor.

QUESTION: Or I've changed the meaning of the word "enterprise."

MR. BLAKEY: Your Honor, this statute was --

QUESTION: It seems to me a deal is a deal. If that's what -- if that's how they meant to narrow the statute, that ought to be narrow enough. And the argument you must rely on, then, is that this is not extortion.

MR. BLAKEY: Your Honor, I want to rely on all the arguments --

QUESTION: I know you do.

MR. BLAKEY: And let me -- let me turn to another one.

QUESTION: Before you leave this argument, though, you suggest that in response to the concern about the Vietnam protestors they drew up -- drafted a rather narrow definition of racketeering activity.

MR. BLAKEY: That's correct.

QUESTION: The narrowed definition includes over 2 pages and lists lots of crimes, some of which do not have an economic motive such as some of the obscenity crimes. So I don't know how that helps here.

MR. BLAKEY: Obscenity was not in it, Your Honor, in 1970.

QUESTION: Well, it's in it now.

MR. BLAKEY: It's in it now, and maybe Congress was unwise in doing that.

(Laughter.)

MR. BLAKEY: Let me turn to -- but we're not here to argue that, fortunately.

QUESTION: No, but I think it's inconsistent with the notion that they limit it in a way which definitely excluded everything except economic gain.

MR. BLAKEY: Well, Your Honor, I think whatever "affairs" meant in 1970, it remains that no matter what they do when they introduce obscenity.

Let me turn -- in other words, if obscenity comes in it doesn't change the meaning of the word "affairs." Affairs means commercial or professional business, and it's the word of limitation in this context.

Let me turn, if I might, to the statutes in pari materia with this statute. This statute was modeled on the antitrust statutes. The antitrust statutes have as their purpose securing freedom in the marketplace. RICO has as its purpose securing integrity in the marketplace.

When Congress adopted RICO in 1970, it had before it the subtle jurisprudence of this Court under the antitrust laws, and that subtle jurisprudence excludes political activity, it excludes labor activity, it -- and we've learned since, in Claiborne Hardware, that it excludes protest activity.

If, in fact, Carrie Nation and the Anti-Saloon League wielding an ax in a saloon is not in restraint of trade, if William Letter heading up the American Association -- American Federation of Hosiery Workers in a violent sitdown strike is not restraint of trade, if Medgar Evers and the NAACP in a sometimes violent civil rights boycott is not in restraint of trade, then I suggest to you Joe Scheidler and PLAN is not conducting the affairs in the sense of business or commercial.

QUESTION: Mr. Blakey, I've been thinking about affairs, and it -- if Congress wanted to convey the meaning you suggested, wouldn't it have said business? Because affairs come in all sizes and shapes. There are private affairs, there are family affairs.

MR. BLAKEY: That's why, Your Honor --

QUESTION: But wouldn't business fit much better if that's what Congress was trying to portray?

MR. BLAKEY: Your Honor, let me trace the legislative history at this point. An earlier statute indeed used the word "business" and the reason the word "business" was dropped is because two statutes were merged.

Senator McLellan's original Syndicate bill, which was aimed at the underworld generally, Senator Hruska's Infiltration bills were aimed at the upper world. Senator Hruska's bill said "business enterprise." When those two bills were merged, had the statutory draftsman left the word "business" in there, you would have had the very real ambiguity this Court had to deal with in Turkette as to whether this meant legitimate business only. The word "business" was dropped not to make it beyond business --

QUESTION: And you don't think you can have legitimate and illegitimate affairs?

MR. BLAKEY: Your Honor --

(Laughter.)

MR. BLAKEY: You certainly do. The question is whether you have them in this statute in this context. And the answer to that question is holistic and cannot be done by the abstract analysis of the word "affairs." Look at it in context.

QUESTION: Thank you -- thank you, Mr. Blakey.

Ms. Clayton, you have 5 minutes remaining.

REBUTTAL ARGUMENT OF FAY CLAYTON ON BEHALF OF PETITIONERS

MS. CLAYTON: Thank you, Mr. Chief Justice, may it please the Court:

If I heard Mr. Blakey right, his argument began with the principle that the concept of illicit gain sums up the RICO statute. I think in -- Justice Ginsburg's question just a moment ago pointed out how inaccurate that statement really is.

But I would also like to remind the Court and Mr. Blakey that in his 1980 article which is relied upon by Mr. Scheidler in his brief, he said -- and more important, this Court has said on many occasion that Congress knew how to put a limitation in RICO when it wanted to. And if Congress wanted to limit RICO to crimes done for illicit gain, two words would have solved the problem and we wouldn't see the quagmire of issues like Mr. Blakey has been forced to address this morning.

The question -- the argument that he makes raises so many questions that no one can answer. Even the lower courts couldn't say -- with all the various definitions they've come up with in Ivic, in Bagaric, which took away motive and gave dimension, it still doesn't answer the question of where we're supposed to look for this economic motive or dimension or gain. Is it supposed to be in the crimes, in the enterprise, in the criminals themselves?

Congress knew how to put limits in RICO, and as this Court said in Russello, the short answer is that Congress did not write the statute that way. It could have -- certainly it could have limited enterprises to business enterprises. It could have limited predicate acts to ones done for gain: murder for profit, arson for profit. It didn't do that. Affairs certainly doesn't imply the exclusion of illegitimate affairs any more -- or noneconomic affairs any more than the arguments that this Court heard in Turkette made any sense. It just doesn't wash.

Mr. Blakey's reliance on the antitrust laws is mystifying to me, because the antitrust laws for more than three-quarters of a century have taught that good motives do not save illegal acts. And all the authorities, his reference to antitrust cases, are entirely apart from this case, because each and every one of them involved either petitioning or protected lawful speech.

Even the Seventh Circuit, which threw out -- which upheld throwing out our complaint, recognized --

QUESTION: Well, that may be, but I think the point he's using them for -- and this statute is modeled after the treble damage actions in the antitrust laws. What he's using them for is to show that in another area we have imported an extratextual limitation upon the statute. Now for whatever reasons, First Amendment reasons, whatever reasons, the point is it is an extratextual limitation.

MS. CLAYTON: But, Your Honor, it was based on the text, the phrase "restraint of trade." Restraint of trade was not a defined term in the antitrust --

QUESTION: It restrains trade to have a grape boycott. That certainly restrains trade.

MS. CLAYTON: Your Honor, going back almost a century, we know that when the antitrust laws were enacted, the word "restraint of trade" was a highly technical, highly legalistic term, and the Court had to infer what it meant.

QUESTION: In any case, it was a limitation on what, by analogy, we would call the predicate acts, wasn't it?

MS. CLAYTON: I'm sorry, Justice Souter, I didn't hear your question.

QUESTION: The limitations that Mr. Blakey was referring to are those which, by analogy, we would refer to as limitations on the predicate acts which would suffice?

MS. CLAYTON: It would -- it would seem like that would be the limitation, but he --

QUESTION: It certainly would not support the argument that -- that enterprise -- in this case, that enterprise has to be so limited.

MS. CLAYTON: Well, Your Honor, the antitrust laws don't exclude nonprofit enterprises. I mean -- or nonprofit businesses. We have the -- all the professional, the lawyers that we had, the medical association, the people who were the association saying plastic tube was dangerous, all these nonprofit associations, they were not --

QUESTION: But they're acting for commercial motives,

MS. CLAYTON: Not always, Your Honor. In many cases the -- in fact, there's never been a case, Your Honor, where the antitrust law has been limited -- except this case, where the lower court -- we had wished you had taken our antitrust issue too. But the lower court was the first one in the country to ever say motives count.

The Eighth Circuit decision in Council of Defense had said exactly the opposite. A purely political boycott there, and a peaceable one so we didn't invoke the First Amendment problems -- that the Eighth Circuit said in 1920 and that had been good law ever since, that the fact that they did it purely for politics, they didn't like Mr. Hearst's pro-German sympathy and so they called for a major commercial boycott, not a consumer boycott, of his paper, that wasn't protected.

This is the first case that's ever --

QUESTION: Do you agree with that decision?

MS. CLAYTON: Absolutely, Your Honor. I think it's right and I think to impose a requirement on the antitrust laws that if -- that if they're done for another motive, it flies in the face of all of the antitrust case law which shows that purpose and effect on commerce is what counts.

Thank you very much, Your Honors.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Clayton.

The case is submitted.

(Whereupon, at 11:01 a.m., the case in the above-entitled matter was submitted.)