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Tuesday round-up

And June is underway.  Yesterday the Court issued three opinions in argued cases, announced that it would review a pair of Alabama redistricting cases, and called for the views of the Solicitor General in another case.

The biggest decision of the day came in Bond v. United States, the case of a Pennsylvania woman who attempted to poison her husband’s paramour.  All nine Justices agreed that Bond could not be prosecuted in federal court under laws intended to implement an international convention on chemical weapons; six of those Justices, in an opinion by Chief Justice John G. Roberts, Jr., held that the federal laws do not apply to Bond.  Lyle Denniston covered the decision for this blog, and I added a report in Plain English; Mark Walsh reported for us on the atmosphere in the courtroom yesterday.  Other coverage of yesterday’s decision comes from Nina Totenberg of NPR, Adam Liptak of The New York Times, Bill Mears of CNN, Daniel Fisher of Forbes, and Jaclyn Belcyzk of JURIST

Commentary on the Court’s decision comes from:

  • Noah Feldman at Bloomberg View, who contends that “[t]he whole sordid tale can tell us something important about how the court does its business today when interpreting statutes”;
  • Garrett Epps of The Atlantic, who applauds the decision on the ground that “[p]rosecutorial overreach happens every day” and contends that “it is to the Court’s credit that six of its justices contented themselves with addressing this real problem, leaving the terrifying specter of treaty abuse for a case that really presents it”;
  • Richard Re at Re’s Judicata, who suggests both that “[t]he real problem” for the Court “was that federal prosecutors had overreached” and that the Court’s decision yesterday “is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley’s ‘anti-shredding’ prohibition by throwing illegally caught fish off his boat”;
  • Ruthann Robson at Constitutional Law Prof Blog, who summarizes the case as one in which, “[i]n a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them . . . and thus there is no need to decide whether Congress exceeded the power the Constitution’s treaty and necessary and proper powers gave it”;
  • Kent Scheidegger at Crime and Consequences, who contends that “[t]he majority has intentionally misread a statute to avoid a result that most of the members of Congress had no idea would result from their enactment of a statute against ‘chemical weapons’” but adds that it “is exceedingly dangerous for courts to go around departing from the language Congress enacted without any actual ambiguity in that language”;
  • Ilya Shapiro at Cato at Liberty, who agrees with the majority that the “decision to prosecute Carol Anne Bond . . . under a law that implements the international Chemical Weapons Convention was an abuse of federal power” but laments that, “in deciding the case so narrowly, creatively reinterpreting an expansive federal statute instead of reaching the constitutional issue at the heart of this bizarre case, the Court’s majority abdicated its duty to check the other branches of government”;
  • Howard Wasserman at PrawfsBlawg, who focuses on what he describes as the Chief Justice’s “penchant for . . . flourishes” in his writing; and
  • Todd Gaziano at the Pacific Legal Foundation’s Liberty Blog, who characterizes the opinion as a “double win” for individual liberty.

The Court also issued unanimous decisions reversing the Federal Circuit in two patent cases.  In Limelight Networks v. Akamai Technologies, it held – in an opinion by Justice Alito – that a defendant cannot be liable for inducing infringement under 35 U.S.C. § 271(b) when no one has directly infringed under § 271(a) or any other statutory provision.   And in Nautilus v. Biosig Instruments, Justice Ginsburg wrote an opinion for the Court which held that a patent is invalid for indefiniteness if its claims, read in light of the patent’s specification and prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.  Jaclyn Belczyk covered both opinions for JURIST (here and here).  Commentary on the patent decisions comes from Noah Feldman at Bloomberg View and Kristin Osenga at PrawfsBlawg.

In orders from its Conference last Thursday, the Court announced that it would review a pair of challenges to Alabama’s redistricting plans.  Lyle Denniston covered all of yesterday’s orders for this blog; other coverage of the Alabama cases comes from Adam Liptak of The New York Times, Bill Mears at CNN’s Political Ticker blog, and Jaclyn Belczyk of JURIST.

The Court’s denial of review in the case of James Risen, a reporter for The New York Times who has been subpoenaed to testify in a criminal trial regarding his sources, also garnered substantial coverage, including from Adam Liptak of The New York Times, Bill Mears of CNN, and the Federal Evidence Review.


  • Today at 10:30 a.m. the Senate Judiciary Committee will hold a hearing on the Supreme Court’s recent decision in McCutcheon v. FEC, striking down aggregate limits on campaign contributions, and a proposed constitutional amendment that would permit the federal government and states to limit money in political campaigns.  C-SPAN will cover the hearing.
  • At Hamilton and Griffin on Rights, Randal Morrison urges the Court to grant review in an Arizona case to “clear up the lower court confusion about ‘content neutrality’ in sign regulation and related areas.”
  • At the blog of the National Conference of State Legislatures, Lisa Soronen discusses the State and Local Legal Center’s amicus brief, as well as the issues at stake more broadly, in next Term’s North Carolina Board of Dental Examiners v. FTC.

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Jun. 3, 2014, 9:05 AM),