There's just one problem: Texas is making this argument for the first time before the Supreme Court. Talk about late in the game. O'Connor wants to know if the Supreme Court can just waive the whole AEDPA thing. Kennedy wants to know what Cruz thinks about the president's recommendation that the Texas courts reconsider Medellin's case. Not much. Cruz says that Texas sees "significant constitutional problems with a unilateral executive decision" that in his view displaces the state's criminal laws. Which leads to the odd-bedfellows moment in which Breyer and Ginsburg decide to back the president, in all his great wisdom. "Why doesn't he have the authority to determine what this treaty means under these circumstances?" Breyer asks. "And why isn't Texas bound by that determination?"
Ginsburg chimes in to say that it makes perfect sense to send the case back to the Texas courts because they're the ones who made the decisions that the ICJ said needed a second look.
In fact, Medellin has already taken himself back to Texas. His lawyers filed a new habeas petition there a few days ago. According to Cruz, the state courts don't know whether to move ahead or to issue a stay, pending the Supreme Court's decision following today's argument. Since none of the justices seem inclined at this stage to do something crazy like decide that an ICJ judgment has binding force in American courts or that the president does or doesn't have the authority to rewrite the rules of procedure, the Texas courts will probably get to hold onto Medellin for the moment. But if they don't grant him a new trial, chances are he'll be back here next year. In the meantime, some lucky professor can start in on those 1,000 law-review articles.