And why did the Court deny Cato’s motion to intervene in Bond?

November 5th, 2013

Colloquies like this in United States v. Bond make me wish that Nick Rosenkranz was arguing, full steam ahead, to overrule Missouri v. Holland:

JUSTICE KAGAN: That sounds like a facial challenge. Now, I thought that you made very careful to talk about that this was an as-applied challenge to this particular prosecution.

MR. CLEMENT: Well, that’s because the only relief I’m seeking is to have my client’s conviction vacated. So this is the classic as-applied challenge. Now, the reasoning that the Court may employ in vindicating my as-applied challenge may suggest that the statute is unconstitutional in some or all of different applications, but our claim has always been that the -¬≠

Btw, the exchanges between Kagan and Clement are at such a high level. It reminds me of their discussions in Windsor. It is a joy to read.