Let's start with the obvious: I'm not Dahlia Lithwick. To Dahlia's devotees—and you are legion—who are thinking of me as Kirstie Alley on Cheers, or the subbed-in Luke on the Dukes of Hazzard, well, sorry about that. But think about it this way: It's not as if Slate has killed Dahlia off. She'd just rather not give birth to her new baby in court. So, until she comes back, skinnier if not well-rested, I'll be keeping an eye on her nine other babies.
Jose Medellin's death-penalty appeal is before the justices this morning because he didn't get to make a phone call—not the proverbial call to his lawyer, but to someone who might have been even more helpful: his consulate. When Texas police picked him up for participating in a gang rape of two teenage girls, then helping to strangle one of them to death with his shoelace (crimes to which he later confessed), the cops neglected to mention that as a citizen of Mexico, he had a right under the Vienna Convention to let his consulate know he was in trouble. With no consulate around to muck things up, Texas took it upon itself to line up a lawyer for Medellin. A really good one, who during the trial got himself suspended from the bar for ethics violations involving another case, and who didn't tell Medellin about his consulate or the consulate about Medellin. Mexico found out about this case only after he'd been convicted, sentenced to death, and had lost on appeal.
At that point, our neighbor to the south decided not to rely only on American justice anymore. Mexico helped Medellin bring another appeal so he could argue he was entitled to a new trial, this time with the help of his consulate. But even before Medellin lost that appeal—both the state and federal courts ruled that it was too late for him to start talking about the Vienna Convention—Mexico also sued the United States before the International Court of Justice on behalf of Medellin and 53 other Mexican nationals who said they'd also been tried and convicted before their consulate knew the first thing about them. Before a panel of ICJ judges that included an American, Mexico won, 14 to 1.
As it happens, the United States had a big hand in drafting the Vienna Convention in 1963, along with the "optional protocol" (countries decide whether to sign on to this part separately; 46 have), which gives the ICJ the power to hear disputes arising under the treaty. The idea, presumably, was to make things a little bit safer for Americans who get themselves arrested or detained while traveling abroad. The United States invoked the optional protocol when it sued Iran over the hostage crisis.
But that was then and the Bush administration is now, and if there's one thing that doesn't square with this administration's worldview, it's any international tribunal with authority over American affairs. Last month, Condoleezza Rice politely told the United Nations that from now on, the ICJ can get lost. No more optional protocol for the United States. Future gang-rapist murderers who are foreign nationals won't be able to complain about being sent straight to the death chamber. And if Americans arrested abroad have one fewer protection against being left to rot in some godforsaken prison somewhere (anyone else remember Midnight Express?), well, tough.
But if you may be out of luck, that doesn't mean Jose Medellin is. The wrinkle in this case is that the Bush administration pulled out of the optional protocol for the future, but it has also conceded that it's not a good idea for the United States to go around bailing on international commitments made by previous administrations (in this case Nixon's). In the name of America's foreign-policy interests, Bush's lawyers in the Justice Department are helping Medellin (even though they entered the case on Texas' side). They want to give him what he's asked for and what the ICJ ordered: review and reconsideration of his case in the Texas courts. This time, the Bush lawyers say, the Texas courts can't bounce Medellin for failing to bring his Vienna Convention claim earlier—because President Bush says they can't. In other words, this case isn't just Texas v. the World Court anymore. It's Texas v. the Executive, plus the World Court.
That is good news for Jose Medellin. His only problem now is to get away from the Supreme Court before they can screw things up for him. So, that's what his lawyer, Donald Francis Donavan, tries to do this morning. What Medellin wants is a nice neat little stay—a break in the action while the Texas courts do his appeal over again. At first, the justices seem flummoxed. "Has this court ever said, OK, you can just come back next term?" Sandra Day O'Connor asks. "This is a very unusual request." Donavan acknowledges that it is.
His real problem, though, isn't the proceduralists on the court. It's Antonin Scalia, who naturally thinks the ICJ judgment is about as binding on the U.S. courts as yesterday's lunch menu and who doesn't care to have the president tell him otherwise. "Do you think the president could enter into a treaty that provides that the commander in chief could be someone other than the president?" he asks Donovan. The lawyer answers that no treaty can amend the Constitution, which is basically Scalia's point. The Constitution makes American judges the arbiters of American law. No treaty should be allowed to replace them with an international tribunal. "You're talking about a question of U.S. law," he says, referring to the issue of whether Medellin blew his Vienna Convention claim when his first lawyer failed to make it.
O'Connor tries to offer a way around Scalia's sovereignty sticking point. Rather than treating the ICJ's ruling for Medellin as binding, she suggests, the court could look at the Vienna Convention itself and decide whether it gives Medellin the right he's asking for. But she doesn't get far. Justice Kennedy picks up where Scalia left off. "Can the president give an interpretation of a treaty that is binding on us?" he asks, chin in hand. This is a really interesting question. It's also a question that most of the other justices seem entirely disinclined to answer. Breyer has been quiet; now he offers his colleagues an exit. "Are you saying that the president's determination is binding, or that we might choose to show deference to the president?" he asks Donovan. Ah, deference. You can feel everyone breathing a bit easier—constitutional crisis averted.
The state of Texas, however, isn't ready to let the justices back out. R. Ted Cruz, the state's solicitor general, wants to get rid of Medellin rather than simply putting him on hiatus. "This case may launch a thousand law review articles, but there's a simple statutory basis for resolving it," Cruz says in his opening statement. Simple for him, maybe; pretty technical for the rest of us. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act *, which has been most effective in turning habeas review—the traditional way to challenge a conviction that's been upheld on appeal—into a bunch of dead ends. One of those dead ends in the federal courts of appeal, which can't review a habeas claim on the merits unless that claim is rooted in the Constitution. Cruz's argument is that Medellin's claim on review isn't about the Constitution; it's about the Vienna Convention. Pretty slick. Scalia loves it.
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.