Supreme Court Justice Ruth Bader Ginsburg led an impressive life. She fought cancer for more than a decade on the Supreme Court and she established a legacy as one of the most radical left justices in American history. Ginsburg was wicked smart and she cultivated a close friendship with Justice Antonin Scalia despite their massively different approaches to politics and the law.
While Ginsburg loyally advanced leftist causes, she also followed her principles to defend those with whom she disagreed. One particular case stands out — National Organization for Women v. Scheidler (2006).
I came across NOW v. Scheidler while researching the Southern Poverty Law Center (SPLC) for my book Making Hate Pay: The Corruption of the Southern Poverty Law Center. NOW v. Scheidler gave a vital clue to the SPLC’s transformation from a noble civil rights organization to a far-left smear factory.
The SPLC gained its notoriety by taking on the Ku Klux Klan and related white supremacist groups, securing nationwide injunctions against them and then using the injunctions to shut them down. In NOW v. Scheidler, they applied this strategy against a pro-life activist.
The case began in 1985 when Joseph M. Scheidler published the book Closed: 99 Ways to Stop Abortion. Scheidler urged pro-life citizens to undertake a national crusade against the abortion industry. The SPLC brought an antitrust action against Scheidler, claiming that the book represented a conspiracy to achieve an “unreasonable restraint of trade.”
As the Thomas More Society explains, Scheidler’s book had “a wholly legitimate goal clearly analogous to the goals of those who urge boycotts or legal bans against the commercial sale of morally objectionable products or services (e.g., gambling, tobacco, narcotics, pornography, body parts, foie gras, etc.). … The antitrust laws were clearly intended to regulate economic behavior within lawful markets, not moral and political efforts to get entire markets themselves legally banned or boycotted on public policy grounds.”
Yet it took five years to convince a federal trial judge to throw out the antitrust claim. Later, NOW took up the case, bringing new claims under federal racketeering (RICO) laws.
Thomas Brejcha, a partner in a Chicago law firm whom Americans United for Life (AUL) hired to defend Scheidler in 1986 and who is now president and chief counsel at the Thomas More Society, told me about the SPLC’s involvement in the case.
He said the SPLC used its 1981 case protecting a group of Vietnamese fishermen from harassment as a model.
“I thought it was a totally bizarre use of the antitrust laws,” Brejcha told me in Making Hate Pay. “They were politicizing this as an attempt to go after terrorism and they didn’t quite allege that Scheidler was a terrorist, but that he had organized pro-life activists all over the country to engage in illegal acts. And of course, the illegal acts were peaceable non-violent direct action.”
“Their model, as they publicized it, was to create a counterpart to Klanwatch whereby a nationwide injunction would be entered and they would go and force the nationwide injunction whenever there was a terrorist attack—arson and bombing—against an abortion clinic,” Brejcha said.
The SPLC used a similar injunction strategy to shut down Glenn Miller’s follow-up organization to the Carolina Knights of the Ku Klux Klan, the White Patriot Party.
While Scheidler had said “that he wouldn’t shed a tear whenever an abortion clinic was put out of commission, saying it’s like Auschwitz or whatever,” the author “advocated nonviolent means and he did so in his book. He certainly wasn’t any kind of conspirator and that was so ruled later on by the judge who inherited the case,” Brejcha said.
In fact, the Seventh Circuit Court of Appeals ruled in 2014 that NOW and the abortion clinics that filed the original suit had to pay attorneys’ costs to the Thomas More Society because the lawsuit was frivolous.
While the SPLC was only involved in the case for a short time, from 1986 to 1988, Brejcha said the similarities between the SPLC attack on Scheidler and its later use of the “hate group” label to demonize conservative and Christian organizations are “very obvious.”
Ruth Bader Ginsburg was a staunch abortion supporter, but she supported Scheidler against this baseless witch hunt.
After Ginsburg’s death, Brejcha released a powerful statement about her influence on NOW v. Scheidler.
“Justice Ruth Bader Ginsburg will go down in legal history as a Jurist of very high stature and lasting repute who played a pioneering and pivotal role in paving the way for the advancement of women lawyers to their present positions of power and influence in our legal profession,” he said. “But what marks her as a truly legendary jurist is her fidelity to the law, as a body of principles that stands apart from, and transcends, mere policy preferences and political partisanship, however deeply felt and ardently fought for.”
“Thus we witnessed her voting twice in favor of our advocacy, which was assailed (stridently albeit baselessly) in so many quarters in the marathon NOW vs. Scheidler litigation, which gave birth to our Thomas More Society, a public interest law firm. The case lasted over 28 years from start to finish, and it culminated in a pair of successive U.S. Supreme Court decisions against the use of the federal racketeering and extortion laws against peaceable non-violent political protest,” Brejcha explained.
“In that case, Justice Ginsburg joined an 8-1 majority in Scheidler II, handed down in 2003, and then again she joined an 8-0 majority in Scheidler III, handed down in 2006 (Justice O’Connor having retired, or it would have been 9-0) — proving herself faithful to the operative legal principles that proved dispositive, despite the fact that she was casting her vote against the National Organization for Women, another high profile advocate for the cause, so styled, of women’s rights,” the Thomas More Society founder added.
“We deeply disagreed with her about abortion rights, but we too, at the Thomas More Society, salute her record of judicial service and mourn her passing.”
Ginsburg upheld a nearly unfettered “right” to abortion for decades, but that doesn’t mean she wouldn’t protect pro-life activists wrongly targeted as somehow connected to terrorism.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.