Redstate

By bluechiplaw Posted in Law — Comments (10) / Email this page » / Leave a comment »

Just kidding. But he did add a welcome 6th vote to a textualist majority.

He did cast an admirable vote this week in Medellin v. Texas where he was faced with the most difficult choice a liberal jurist can face: slap down the president, or embosom international law? In all seriousness, though, the Court's decision in Medellin made for a strong support of the Constitution, federalism, and judicial restraint.

A brief recitation of the facts: (by the way, especially when quoting the facts, I may quote the Court at times without quotations... this is out of a desire to pump out this post, and not a desire to take credit for Justice Roberts' brilliance.)

This case involved a Mexican national in Texas, who had lived in Texas since he was in preschool, who violently murdered a young girl. Without going into the grisly details too much, he strangled her with her shoelace--yet another job an American wouldn't do. Medellin was found guilty and sentenced to death. Oddly, here in Texas the Texas Supreme Court doesn't hear criminal cases, that honor goes to the Court of Criminal Appeals, which denied Medellin's initial appeal.

Meanhwile, as Medellin and 50 other foreign-born criminals residing in the United States were vigilantly trying to grasp to any straw to get them out of jail, they brought a suit in that bastion of the legal world---The International Court of Justice (ICJ).

The issue facing the ICJ stemmed from a treaty entered into decades ago by the U.S. and dozens of other countries which grants the right to foreign nationals in the U.S. to have access to their consulate within three days after being arrested. Medellin was not granted his ever-important consular visit, so the ICJ said that Texas had to review the conviction of Medellin, even though Medellin had never brought up this consular crap previously. (Oh, he confessed to the murder the night he was arrested, so the consular visit two days later wouldn't have done that much good. But the boys in Belgium don't care about that. Maybe under the metric system time doesn't work that way.)

Well, once the ICJ had its ruling, Medellin filed a writ of habeas corpus to the Texas Court of Criminal Appeals. The Texas court presumably saw the writ, spit tobacco juice on it, and politely mailed it back to Medellin with the word DENIED handily stamped in red ink on the front.

Oddly, after the ICJ's decision, President Bush issued an executive memorandum supporting the decision, and stating that it would be the law of the United States. Sounds like State Department shenanigans to me. Anyway, that's how it was. Texas, in spite of loving the president, didn't believe that an executive memorandum could effectively make an international court decision domestic law. Texas is funny that way.

Since Medellin had never previously brought up the consular argument, his appeal was automatically barred. The issue before the Court was whether the ICJ decision combined with a presidential memo could overrule State law.

Apparently there are two types of treaties, self-executing and non self-executing. Self-executing treaties are those adopted with the advise and consent of the senate and expressly state in some manner that the terms of the treaty are binding domestically in the member countries.

The threshhold question with regard to whether the ICJ's rulings could be binding domestically is whether the treaty creating the court is self-executing. After reviewing the language of the treaty, the majority could not find self-executing language.

Quoth Roberts: "The dissent faults our analysis because it 'looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (treaty language.' Given our obligation to interpret treaty provisions to determine whether they are self-executing, *we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue.* That is after all what the Senate looks to in deciding whether to approve the treat." p. 18.

BRILLIANT!

The majority also pointed out that the only way a treaty becomes law in the States is through the political branches, as is outlined in, ahem, the Constitution. p. 19. The dissent argued for almost a case-by-case review of treaties (with some complicated standard) to determine whether a treaty applies domestically, regardless of self-executing language in the treaty. Roberts stated that such a construct would "be the equivalent of writing a blank check to the judiciary," which the majority refused to do. Whew.

The U.S. was arguing that through his powers as the executing, the President can issue an executive memorandum to somehow make a treaty apply to the states in a way Congress didn't intend. In spite of what liberals say about Roberts' and Scalia's longing to expand executive power, they certainly refused to do so here.

Oh, and by the way, of the 171 signatories to the Vienna Conventions none, not one, treat ICJ rulings as controlling. The only possible exception being a few lower court rulings in . . . wait for it . . . Morocco. But even there, the courts are split.

The dissent recognized that Congress would not cotton to abiding by *all* ICJ decisions. Duh. But the dissent argued that courts should determine when the treaties apply and when they don't. I guess that means that courts decide when Congress would agree with an ICJ decision and when it wouldn't.

Scalia, Thomas, Alito, and Kennedy joined Roberts opinion. Concurring in judgment but writing his own rag was Stevens, who did so with a heavy heart.

"There is a great deal of wisdom in Justice Breyer's dissent," is how Stevens opens his opinion. p. 1. Stevens, though he agreed that the U.N. Charter does not require the U.S. to abide by the ICJ's decision in this case, Stevens prods Texas by saying, "Oklahoma unhesitatingly assumed" the cost of abiding by the ICJ's ruling, so Texas should too. p. 5. Nothing warms a Texans heart like imploring him to be an Okie. In typical fashion, I might add, Stevens wrote the words "on the other hand" twice in his six page opinion. (As did Breyer, by the way.) I don't think originalists say things like, "on the other hand," in their opinions. Hmmm. Good research project.

Stevens said some other dumb stuff, and Breyer must like to read his own words as much as he likes to hear himself talk.

Pardon the length of this post--but even at this length I only hit the high points.