Why Sen. Ted Cruz gets rewarded for saying a lot of things that no one would take seriously anywhere else.
During his campaign, Cruz didn’t talk much about Latin American Citizens v. Perry. His biggest victory, the one he featured in campaign ads, was Medellin v. Texas. It was a simple story: A Mexican murderer had tried to use the Geneva Convention to wriggle out of a death sentence. In Avena and Other Mexican Nationals, the International Court of Justice had ruled for Medellin. In 2008, a 6-3 majority of justices sided with Cruz and against Medellin.
But that took some doing. The case first arrived at the court in 2005, as Medellin v. Dretke, a suit brought against the Texas Department of Criminal Justice. Cruz argued that neither the ICJ judgment, nor a memorandum from George W. Bush, overruled the state’s law.
“The president of the United States has issued a document where he says, ‘Exercising my foreign-affairs power, in my opinion the treaty. … I accept the meaning of the treaty as set forth by the ICJ and apply it to these 51 cases,” said Stephen Breyer. “So he's deciding that. And why doesn't he have the authority to decide what that treaty means in these circumstances? That's his decision. And Texas is bound by the Constitution.”
“We would agree that the fact that the president has acted underscores the point made by both Texas and the United States,” said Cruz, “that the responsibility for determining the remedy to the Avena judgment is found in the political branches.” But that proved his point. There was no precedent for using the ICJ as a basis for an American decision.
“Respectfully,” said Cruz, “if we were to lose, and if Medellin were to prevail, his position could potentially open the door to the reconsideration of the over 100 foreign nationals that are on death row across this country, and, beyond that, to thousands.”
“Well, so could the president's order,” said Justice John Paul Stevens. “The same thing.”
By a 5-4 decision, the court punted and let Medellin continue his appeals. Not long after that, William Rehnquist passed away, and was replaced by John Roberts. In 2008, a stronger case won out with a new court. That victory made Cruz a national conservative star. In a roundabout way, it was cited in his major SCOTUS disaster. Cruz represented five states in Kennedy v. Louisiana, arguing for the constitutionality of a law that allowed the death penalty for child rape. He lost 5-4.
The transcript of that loss portrays a snarkier Cruz. “Blackstone actually talks about how rape under Saxon law was punishable by death,” he said, laying out the moral standard—not international laws!—buttressing his case. “There was a period in 1285 where the punishment was relaxed to loss of the eyes and testicles. That was William the Conqueror's kinder, gentler version.”
He wasn’t as fond of the modern Brits. The “Law Lords,” members of the House of Lords, had submitted a brief against the Louisiana law. “That brief, to my mind, embodied all of the dangers of the very broad arguments that we're being presented in Medellin, that ultimately the Constitution and the people of this country determine what is permissible and what is lawful,” said Cruz. “This court has chosen to look to other nations for guidance, but that brief didn't say this is guidance. That brief said the United States is foreclosed from ever doing this because other nations have made determinations under their law.”
The court didn’t make much of that point, but it ruled against the state anyway. The defeat was the only somewhat useful negative attack that Cruz’s 2012 primary opponent could come up with. But once he entered politics, Cruz’s fireworks and dazzle simply worked. If you fail to impress a judge or court, you lose the case. No real upside. If you try the same tactics in the Senate, you might constantly end up on the losing side of votes. But you gain a following. You win with the media. There’s a lesson here, and Cruz has learned it with quicksilver speed.
David Weigel is a Slate political reporter. You can reach him at firstname.lastname@example.org, or tweet at him @daveweigel.