FIRST ONE @ ONE FIRST

Bond and The Bar

Posted in Anticipation, Law and Politics by Mike Sacks on December 29, 2010

On February 22, while I’ll be locked in a lecture hall taking the bar exam, the Supreme Court will be hearing oral argument in what may be the most salacious suit of the term.  Bond v. United States appears so factually, legally, and politically wild that it almost makes me question my taking that term off during my 2L year: had I stayed at Georgetown rather than go to ABC News, I would have graduated in May, taken the bar in July, and been able to be at the Court in February to hear the lawyers tell the tale of a scorned woman seeking solicitude for her hell-fury under the protection of the Tenth Amendment.

In his brief for Carol Anne Bond, Paul Clement tells the story:

In 1995, petitioner moved with her mother and sister to the United States, where she became very close friends with Myrlinda Haynes, a woman who was also a Barbados native.  Haynes owned a home in nearby Norristown, and petitioner came to consider and treat Haynes as a sister.

In 2006, Haynes announced that she was pregnant.  Unable to bear a child of her own, petitioner was excited for her closest friend.  Her excitement did not last, however, for petitioner soon discovered that her own husband was the child’s father.  This double betrayal brought back painful memories of her own father’s infidelities and caused petitioner to suffer an emotional breakdown…

In the midst of this emotional breakdown, petitioner became fixated on punishing Haynes for her betrayal. Petitioner took a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and she purchased a vial of potassium dichromate through Amazon.com from a photography equipment supplier.  Petitioner knew that the chemicals were irritants and believed that, if Haynes touched them, she would develop an uncomfortable rash.  Both chemicals are toxic and, if ingested or exposed to the skin at sufficiently high doses, can be lethal.

According to the government, petitioner went to Haynes’s home on several occasions between November 2006 and June 2007 and spread chemicals on Haynes’s car door handle, mailbox, and apartment doorknob.

These facts alone are enough to send reporters rushing to the Court, but the love triangle and poisonous revenge are backed up by crazy law and strange meta-bedfellows.

Rather than be subjected to a state charge of assault, Bond’s use of toxic chemicals against her now-former best friend got the Feds involved.  They charged her with a violation of a federal statute that Congress passed in obligation to an international treaty entitled, “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.”  A grand jury indicted her under the statute’s sweeping plain language – the chemicals fit the law’s definition of banned substances “not intended by defendant Bond to be used for a peaceful purpose” – and she pled guilty after the federal judge rejected her constitutional claims against the law as applied to her.

And it gets weirder.  The scorned woman turned terrorist-in-law invoked her Tenth Amendment rights, something that’s only recently come back in vogue with the rise of the Tea Party and the Affordable Care Act.  Bond argued to the Third Circuit that the federal criminal law used to convict her was beyond Congress’s Article I authority and therefore invaded the province of rights reserved to the states and the people.  The appeals court did not reach the merits, ruling instead that Bond, as an individual, did not have standing to bring her Tenth Amendment claim absent the state or its officials as parties to her suit.

By the time Bond petitioned the Court for review, however, the United States switched sides, officially telling the justices to let her sue.  The Solicitor General urged the Court to GVR–grant, vacate, remand–the case without oral argument.  The Court disagreed and ordered oral argument.

With the Tenth Amendment and Article I limits swirling in the air these days, it is striking to see the SG in this case on the same side as Bond’s other amici: Alabama, Colorado, Florida, South Carolina, Texas, and Utah (all parties to the health care challenge awaiting decision in Florida); CATO Institute; Gun Owners of America; and the Eagle Forum.

Ultimately, this case is about Bond’s standing to bring her Tenth Amendment challenge, not the merits of that challenge.  Still, this case is a thorny thicket of jurisprudential themes.  Textually, the law does apply to Bond.  But will the patent absurdity of this law’s use against Bond compel the Court’s more textualist justices to put aside their interpretive principles?  Perhaps because this question is embedded in a contest between conservative values–deference to federal law and order efforts versus the commitment to a limited federal government–the Court’s right flank may with an easier conscience forego the letter of the law for its more equitable spirit towards Bond.

The oral argument itself may simply be a formality so that someone may argue for the wisdom of the position that the United States has since abandoned rather than GVR the case without the dignity of a proper adversarial process.  That someone who the justices assigned to adopt the orphaned argument for the Government is Stephen R. McAllister, former state solicitor general of Kansas and dean of the the University of Kansas’s law school.  Accordingly the advocates, like the arguments they will be making, will embody a clash of legal conservatism: McAllister and Clement launched their careers from clerkships in the chambers of Justices Thomas and Scalia, respectively.

Bond brings layer upon layer of exciting stuff, from its own facts and law to its place in the moment’s larger legal-political milieu.  I guess in lieu of attending the oral argument, I will just have to inspire myself with Bond’s focused rage and sophisticated legal arguments so to unleash the fury on the bar exam.

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