McAllister tapped for rare opportunity to defend orphaned argument at U.S. Supreme Court
teve McAllister is no stranger to arguing before the U.S. Supreme Court. But the KU Law professor and Kansas solicitor general charted new and rare territory in February when he agreed to defend the judgment of a lower court in a case whose underlying facts led many news outlets to describe it as a Lifetime movie plot. McAllister, L’88, became the 43rd attorney in the court’s history to be appointed by the justices to back a position that otherwise would have no advocate. He did so in the case of Bond v. United States. Slate called it “The Case of the Poisoned Lover.” Microbiologist Carol Anne Bond of suburban Philadelphia was excited to learn that her best friend was pregnant — until she discovered that her husband was the baby’s father. Bent on revenge, Bond first verbally harassed Myrlinda Haynes and later attempted to poison her with toxic chemicals. She was eventually convicted of possessing and using a chemical weapon under 18 U.S.C. § 229, a statute that implements a 1993 chemical weapons treaty. Bond, who received a six-year prison sentence and roughly $12,000 in fines and restitution, appealed to the U.S. Court of Appeals
In this courtroom sketch by William Hennessy Jr., Steve McAllister, professor of law and solicitor general of Kansas, presents oral arguments before the justices of the U.S. Supreme Court in the case of Bond v. United States.
reached the Supreme Court, the government changed its position, arguing that Bond did have limited standing. Thus, the lower court decision had no defender. Until Justice Samuel Alito invited McAllister to do the job. “I was honored to get the call from Justice Alito and honored to serve the court in this capacity,” McAllister said. “Writing the brief was a huge undertaking, but a rewarding experience. And participating in the oral argument with former Solicitor General Paul Clement (petitioner’s lawyer) and Deputy Solicitor General Michael Dreeben (for the U.S.) was a joy. “Fortunately, my wife and three of my children were able to attend and see ‘dad’ in action.”
“I was honored to get the call from Justice Alito and honored to serve the court in this capacity.” — Professor Steve McAllister, L’88 for the 3rd Circuit. Her lawyers claimed that charging Bond under a federal chemical weapons treaty intruded on state’s rights as provided in the 10th Amendment. The 3rd Circuit held that Bond had no standing to make the 10th Amendment claim. When the case
Before Bond, McAllister had argued four cases before the Supreme Court and briefed another six. He said this case was different because he didn’t have a specific client. “At the end of the day, I have one goal, which is to do what the court asked: defend the 3rd Circuit judgment,” McAllister told the Los Angeles Daily Journal. McAllister, former dean of KU Law, teaches constitutional law, constitutional litigation and torts. Prior to joining the faculty in 1993, he clerked for Justices Byron White and Clarence Thomas at the U.S. Supreme Court, and Judge Richard Posner at the U.S. Court of Appeals for the 7th Circuit. In the infrequent instances when the court has tapped lawyers to represent otherwise undefended positions, it has selected former Supreme Court clerks just over 50 percent of the time, according to a Stanford Law Review article published in April. The court has not yet issued an opinion in Bond. n
KU LAW MAGAZINE 17
Published on Jun 23, 2011