WASHINGTON — A majority of Supreme Court justices appeared amazed and, in some cases, downright angry Tuesday with the federal government's use of a chemical weapons treaty to prosecute a jilted wife.
Not even warnings that a decision tossing out her conviction could restrict U.S. treaty-making authority and harm international relations swayed the court's conservatives from complaining about government overreach.
"It … seems unimaginable that you would bring this prosecution," Justice Anthony Kennedy told U.S. Solicitor General Donald Verrilli.
When Verrilli refuted some justices' hypothetical analogies, such as giving vinegar to a goldfish, Justice Samuel Alito said, "They're not real cases because you haven't prosecuted them yet." Under the government's theory of expansive powers, he said, he and his wife might be vulnerable for giving out Halloween chocolate bars last week that can poison dogs.
What had the justices up in arms was Verrilli's assertion that a federal law implementing the Chemical Weapons Convention of 1997 was used properly against Carol Anne Bond, 42, for an attack that burned the thumb of her husband's lover.
Bond's case escalated from a local crime to a treaty violation in 2007, when police in her Philadelphia suburb declined to act on the complaints of Myrlinda Haynes, Bond's husband's mistress, about a chemical compound repeatedly spread on her doorknob, car and mailbox.
When the police did not act, Haynes called the post office, which put up surveillance cameras and caught Bond in the act. She was convicted and sentenced to six years in prison, and neither federal district nor appeals courts let her off the hook.
But Bond and her attorney, former U.S. solicitor general Paul Clement, found a sympathetic audience at the Supreme Court.
Some justices questioned whether the federal government's treaty power always can supplant local police powers. Even if it can, they wondered, was the chemical weapons treaty and Congress' implementation really intended to encompass crimes Clement called "garden-variety assaults" — or might they fall into its exception for "peaceful purposes"?
Verrilli struggled against the justices' derision. "This is serious business," he said, warning that any diminution of the federal government's treaty power could harm U.S. interests on issues ranging from chemical weapons to nuclear non-proliferation. "There needs to be a comprehensive ban," he said. "You can't be drawing these kinds of lines."
"Judges are here to draw lines," said Justice Stephen Breyer, a liberal justice clearly bothered by the government's case. "It's better to draw a few lines."
Chief Justice John Roberts wondered what limits would exist otherwise on federal treaty-making powers. "You have international conventions affecting everything," he said — a category that encompasses about 1,000 ratified treaties.
Others, led by Justice Elena Kagan, said the treaty and Congress' implementation were valid and therefore paramount. Otherwise, she said, judges would "take the place of treaty-makers."
In defending their prosecution, federal officials cite a 1920 precedent, Missouri v. Holland, in which the Supreme Court ruled Congress could supersede state jurisdiction when implementing a treaty — in that case, a pact with Canada on the treatment of migratory birds.
The justices could seek a more narrow ruling against the government without striking down the 93-year-old doctrine, perhaps by deciding that Bond's actions simply are not covered.
That would avoid one branch of government limiting the power of another, while circumventing a problem foreseen by the 3rd Circuit Court of Appeals when it ruled against Bond in 2009: turning "each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache."
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