The Supremes This Week: A Big Gig

Posted on November 6, 2013 by


Two very important constitutional cases were argued yesterday and today before the United States Supreme Court.  Just as an aside, I tried to get in yesterday to hear oral arguments for Bond v. US and was actually about 45th in line, but still didn’t make the cut.  That shows both how important the cases are and the privilege in DC (seats are automatically reserved for DC Bar members, of which I am not, being from the lowly West Virginia State Bar, as well as other dignitaries, of which I am also not a member).  But enough cynicism.  Bond to me was the most interesting. The facts are these:  Mrs. Bond discovered that her husband was having an affair with her friend.  She then obtained certain poisonous chemicals which she then schemed to place in locations her rival might touch.  Though she did spread the chemicals, the other woman was not injured.  So far an old-fashioned attempted murder or maybe mayhem case, prosecuted and tried at the local/state level under state criminal law. Enter the Federal prosecutor, who decided, for hat reason I am completely without a good explanation, decided he would prosecute Mrs. Bond under the  Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, enacted pursuant to a treaty ratified by the Senate.  In other words, Mrs. Bond was accused of terrorism.  You can see this one was going to get interesting.  To make the story shorter, Mrs. Bond, after conviction, appealed to the Supreme Court, which heard arguments yesterday.  The case involved important the issues of structural federalism an  the Tenth Amendment.   Can the federal government simply preempt state police powers in an unlimited fashion (as the Solicitor General argued) in furtherance of a treaty and a statute enacted pursuant to the treaty?  If it can then there is no real state reserved power, only what the Federal government wishes to continue to allow the states to keep. Read the oral argument at, November 5, blog in the Washington Times by Carrie Severino, who links to the transcript of the argument.

The other important case was Town of Greece v. Galloway, an Establishment Clause case involving prayer at the opening of a town council meeting.  It appears the court may have taken this one to clarify its somewhat confused “doctrine” on the prayer issue.  I will have more to say on that one later.  But I have my doubt the issue will be made clearer. Christians of course should keep and eye on this case, but not get too exercised if it doesn’t go their way.  Given the way “non-sectarian prayers” are going, I wish sometimes there was no prayer at all.  And, substance is in the end better than mere form.