Federal Judiciary

Counsel named for Bond case (UPDATED)

By Lyle Denniston

The Supreme Court on Wednesday named a Topeka, Kan., attorney, Stephen R. McAllister, to defend a federal appeals court ruling that a private individual does not have a right to challenge the constitutionality of a federal law on the theory that it intrudes on the powers of the states.  McAllister will be arguing in place of the Justice Department, which had conceded that the Third Circuit Court was wrong in denying “standing” in that situation.  The case is Bond v. U.S. (09-1227), granted review on the “standing” issue on Oct. 12.  The counsel appointment order is here.

Although the Justice Department had argued in lower courts that Carol Anne Bond of Landsdale, Pa., did not have a right to challenge Congress’s power to pass a law that would apply to a private individual, it switched position when Bond challenged her conviction in the Supreme Court.  The Court agreed to hear Bond’s claim that, as applied to her, a federal law passed in 1998 making it a crime for anyone to produce or use a chemical weapon was beyond Congress’s power.  The 1998 law was designed to implement an international treaty on the spread of chemical weapons.

Although the Justice Department had urged the Justices to send the case back to the Third Circuit to consider the government’s concession on the “standing” issue, the Court instead granted review of that question.  It does not appear that the Court will be reviewing the legality of Bond’s conviction.  The prosecutors used the 1998 law against her after she had allegedly tried several times to poison her former best friend after discovering that the friend was pregnant and that Bond’s husband would be the father.

McAllister is a former Supreme Court law clerk — to Justice Clarence Thomas — and was a former state solicitor general of Kansas and the former dean of the University of Kansas Law School.

(UPDATE 1:56 p.m. — NOTE TO READERS: Brian P. Goldman, a Stanford Law School graduate and formerly a participant in the Law School’s Supreme Court litigation clinic, has noted that Wednesday’s appointment was the 43rd that the Court has made of a non-party’s lawyer to argue an issue abandoned by the party, with more than half of all such appointments going to former Supreme Court law clerks.  Brian is finishing a study of this process, to be published next year in the Stanford Law Review.  He has made available, with his permission and that of the Law School, this draft of the article.)

Full post as published by SCOTUSBLOG on November 10, 2010 (boomark / email).