In 1992, the National Organization for Women (NOW) and two abortion clinics filed a petition for a writ of certiorari asking the U.S. Supreme Court to hear their case and apply the Racketeer Influenced and Corrupt Organizations Act (RICO) against a group of abortion protestors. NOW alleged the protestors broke that law by seeking to put abortion clinics out of business. The claim faced an uphill battle. Both lower federal courts that heard the case decided against NOW, holding that to violate RICO, one must engage in economically motivated behavior. The lower courts stated that because the protestors sought to limit the availability of abortions rather than to gain abortion-related business, RICO did not apply. Had the litigation ended at the circuit court of appeals – as most appellate cases do – that would have been the end of the road for the litigants, and federal racketeering law would have looked very different today. But the litigation did not end there. NOW sought Supreme Court review to settle whether RICO imposed such an economic motive requirement.

Supreme Court review was improbable. The Court hears fewer than one hundred cases each year, granting review to less than percent of all requests (Owens and Simon 2012). During the 1992 term (in which NOW sought Supreme Court review), the Supreme Court heard only 97 petitions out of more than 7,200 requests. In line with the general tendency to hear only the fewest of cases, the law clerk tasked with summarizing the case for the justices privately urged them to deny review.