Justice Gorsuch is known as an “originalist,” and a “textualist” and a judicial conservative. Do those terms help understand how he will think about RICO cases? The short answer is somewhat. Start with originalist/textualist methods of interpreting statutes. An originalist is supposed to divine the meaning of a statute by the stated public beliefs of the people who enacted it. This is not much help with RICO. The law was enacted to combat organized crime, and the civil cause of action codified in section 1964 was an afterthought by a few members of the House. There was virtually no public discussion about using the law to help private parties and applying it beyond mafia like families.

Yet in 1985 and 1989 the Supreme Court held Congress meant a broader law that applied to entirely legitimate businesses and had no ties to organized crime. Presumably an originalist like Gorsuch would have dissented from that view. But in the 1985 case the more conservative justices favored the broader interpretation, and the more liberal ones, led by Thurgood Marshall, wrote an extremely long, prescient dissent. They said the majority view would lead to an explosion of civil cases involving ordinary fraud and the lower courts, or Congress, would have to push back. That happened.

Effectively the Supreme Court majority interpreted RICO according to its text apart from its original stated application. Would Justice Gorsuch and other textualists like his mentor Antonin Scalia, like that? Justice Scalia was uncomfortable with RICO. He thought it might be unconstitutionally vague, and nobody really knew what it meant. While signing the majority opinion in HJ v. Northwestern in 1989, which established the contours of the “pattern of racketeering activity” he thought the court was essentially making it up. But he did not offer a better concept of pattern. The bottom line is that the Supreme Court could have held RICO was limited to organized crime and severely limited the law. It went the other way. But since then the Court has limited the law in small ways, on causation, and last year, on applying extraterritorially.

The concern with conservative judges is that they do not believe in civil litigation. They are constantly looking to rein in statutes to give them the narrowest application. Whether this is done to protect corporations, as many cynically believe, or because they believe in a free society all laws should be construed narrowly, as others believe, varies from judge to judge. But that is their inclination. Gorsuch is very much a conservative. He is probably very wary of RICO, antitrust and other civil causes of action that impose treble damages. I really hope I am wrong and he will apply neutral principles of interpretation. The conservative justices voted as a block last June to impose a non-textual “domestic injury” requirement to civil RICO. Had they been true to their originalist/textualist principles, they would not have done so. Neither supports the outcome they reached. Rather, they simply wanted to limit RICO. If Gorsuch is true to his promises in his confirmation hearings, he will follow text and originalist intent and will not, as he emphatically assured the nation, try to protect defendants in civil cases. We can only hope against hope this still holds.