To the surprise of many Supreme Court observers, the Court today granted cert. in the Bond case, which Nick and I have been debating on this blog. The grant was a surprise because the Court had re-listed Bond for discussion at conference seven or eight times; after that many re-listings, the most typical outcome is cert. denied, with at least one dissenting opinion. It’s possible a majority of the Court had initially voted to deny cert. but the dissenting opinion was convincing enough it persuaded the Court it should not decide the issue without plenary consideration. It’s also possible the Court was uncertain throughout about whether to grant cert. and was working through the several issues the case presents before concluding it was appropriate to hear on the merits.
In light of the grant, it’s perhaps worthwhile to collect in one place the debate Nick and I have conducted so far. See here, here, here, and here. The biggest issue the case presents is whether Missouri v. Holland was rightly decided on the scope of Congress’ power to legislate to enforce valid treaties, which is precisely the issue we have been debating. We will continue that debate over the coming days, now with the greater sense of urgency and interest the Court’s grant generates.