Bond v. United States: One Crazy-Goofy Case

June 2, 2014

On June 2, 2014, the U.S. Supreme Court issued its ruling in Bond v. United States, No. 12-158, one of the crazy-goofiest cases ever presented to the Supreme Court. Here’s commentary from Amy Howe and Lyle Denniston, both from SCOTUSblog.

The case is very sad. Carole Ann Bond was married and living a pretty traditional life. She worked in a science field, was married, and, among other things, was pleased as punch when she learned about her good friend Myrlinda Haynes’ pregnancy. Until, that is, she found out her husband was the father-to-be. Then, she was sufficiently not pleased that she used chemicals to try and harm Ms. Haynes, her former friend. (The good news? Ms. Haynes suffered no significant injuries.)

Ms. Bond was charged with violations of the Chemical Weapons Convention Implementation Act of 1998, an act that, as its title suggests, was passed in furtherance of preventing the use of chemical weapons. In fact, the act was passed to implement U.S. obligations under the Convention of the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons, the same treaty that has been used to force Syria to give up its chemical weapons.

Ms. Bond pled guilty to the charges and appealed her conviction, arguing that the law as applied interfered with the right of the state of Pennsylvania to enforce its own criminal laws. She also argued that the laws she was charged with violating did not relate to what she did.

The Court of Appeals for the Third Circuit upheld the conviction, holding that Ms. Bond had no standing to complain on behalf of Pennsylvania about any federal interference with its right to charge her. The court also rejected her argument that she had not violated federal law. The Supreme Court granted certiorari, the government conceded the standing issue, the matter was heard again, and the conviction was again affirmed. The Court granted certiorari again and reversed the conviction, 9-0. However, contrary to some claims about a unanimous decision, the 9-0 ruling was anything but.

Chief Justice Roberts, writing for a six-justice majority that did not include Justices Scalia, Thomas, and Alito, refuses to accept the notion that Congress intended for a statute designed to implement a treaty to apply to ordinary crimes. He concludes his opinion by observing that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon,” and that “[t]here is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.” He also observes, earlier in his opinion, that the words “chemical weapon” do not connote “everything from the detergent under the kitchen sink to the stain remover in the laundry room,” and mocks the notion that the federal government had any justifiable interest in prosecuting this case.

Two other points. First, the majority opinion grounds itself in basic, pretty much uncontested principles of federalism, recognizing the notion that the federal government stays out of state matters when it can. Second, the majority avoids reaching constitutional matters, another basic principle of Court jurisprudence.

Justice Scalia, in his concurrence (joined by the other two justices, who also write separate concurrences), agrees that the conviction should be set aside. However, he takes issue firmly with the notion that the statute does not apply to Ms. Bond’s conduct. He notes that she:

possessed and used “chemical[s] which through [their] chemical action on life processes can cause death, temporary incapacitation or permanent harm.” Thus, she possessed “toxic chemicals.” And, because they were not possessed or used only for a “purpose not prohibited,” … they were “chemical weapons.”

He concludes this part of his analysis by claiming the Court majority’s “result-driven antitextualism befogs what is evident” and, then, takes the position that the statute forces him to reach the constitutional questions.

Candidly, I cannot follow Justice Scalia’s analysis, or the analysis in the other concurrences. Perhaps that means I should be silent about these matters! Or, it may mean some matters are simply not worthy of discussion. Justice Scalia calls into question whether the statute, as “judicially amended” by the majority, can be enforced, conjuring up whether the majority’s reference to a dead goldfish, killed by vinegar, might matter if the goldfish owner is a politician whose goldfish has been murdered to send a message. Geez! Really? In an opinion written by a member of the Supreme Court of the United States.

I’m sure Justice Scalia has focused on principles that matter to him, and to Justices Thomas and Alito. Partly, his snarky, snide style makes following his position difficult. In the end, however, I can’t help thinking about how anyone can deem worthy of discussion the issues raised by the concurrences. Clearly, this case never should have been brought in federal court. No judgment from the prosecutor, or, as some might say, no sechel! Six justices saw that without much heavy lifting. Three did not!


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