The Supreme Court spent a fascinating hour Monday canvassing a whole host of difficult constitutional and international law questions in a Texas death penalty case, but also spent a good deal of that time talking about ways to avoid answering those questions. Among the ways they discussed: simply dismissing the case without a ruling.

Meanwhile, the procedural status of the case grew newly complicated over the weekend, as attorneys for the death row inmate in the case — a Mexican national named Jose Ernesto Medellin — filed a new habeas challenge in the Texas Court of Criminal Appeals, then asked it to hold off while the Supreme Court ponders what to do. (UPDATE: In a letter to the Court, Medellin’s counsel, Donald F. Donovan, said that the new state petition had been filed on March 24 to avoid any argument that it was filed too late after the World Court ruling that is a key to the petition.)

Medellin’s attorneys already had asked the Supreme Court to put the case pending there on hold, until after they could pursue a possible remedy in state court. That idea, to which the Court had not previously reacted, got a chilly reception from the Justices this morning — with the exception of Justice Stephen G. Breyer, who speculated that it might be the best tack to take.

Justice Sandra Day O’Connor called the idea of delaying Supreme Court action “very unusual; usually, a state court holds off until this Court acts…Why not go ahead and decide this case?”

But, as the Court moved on to explore how to decide Medellin v. Dretke (04-5928), a number of the Justices grew openly hesitant about doing so. Deciding the case, several of them suggested, could require the Court to address a whole host of fundamental questions. Among such questions the Court explored this morning were these:

Is the Supreme Court the sole organ to decide what a treaty means as it applies to a case in American courts? Must the Court accept an interpretation of a treaty that the President has spelled out? Can an international court (here, the World Court at The Hague) confer on individuals private rights that are enforceable in U.S. courts? Must the Supreme Court act to carry out a decision of the World Court? What constitutional principle would support the President’s view that an international treaty imposes binding obligations on the Supreme Court? Can the President dictate to state courts that they must follow a decision of the World Court in their own state criminal proceedings?

Justice John Paul Stevens suggested that the Court might not have to decide any of those issues, if the new Texas habeas proceeding were allowed to go forward. The outcome, Stevens said, might make moot the pending case before the Justices. Texas’ solicitor general, R. Ted Cruz agreed.


But Cruz and Deputy U.S. Solicitor General Michael R. Dreeben urged the Court to go ahead and decide the Medellin case, but on very narrow grounds: that is, that Medellin had no right to try to take advantage of the World Court ruling in his favor by filing a federal habeas case, because there were jurisdictional obstacles under U.S. law to that proceeding, as the Fifth Circuit had decided.

Dreeben said the federal government did not believe the Court should now stay the pending case. The new Texas case, he said, can explore whether Medellin and other Mexican nationals can use the World Court ruling to their advantage. After that is decided, Drreben said, “this Court will have the option of granting cert to review whatever the Texas courts decide.” If the Justices were to proceed to decide anything other than the jurisdictional question in the pending case, “that would be close to issuing an advisory opinion.”

Justice Antonin Scalia commented that state courts in Texas, or in other states with Mexican nationals on death row who were involved in the World Court case, might decide that President Bush lacked the constitutional authority to require state courts to reopen closed criminal cases. (Bush has directed states holding the 51 Mexican nationals to “give effect” to the World Court’s decision in their favor.)

Texas’ attorney general’s office has already advised the Court that it doubts that the President had that authority.

Medellin’s lawyer, Donald Donovan, told the Court that his client was prepared to go forward with the new habeas case in Texas. That petition, he says, seeks to rely, first, upon the World Court ruling, and, second, on the President’s order that state courts should “give effect” to the World Court decision.

That new proceeding, Donovan argued, “should not be compromised by any decision of this Court” in the meantime. “The best thing to do is to issue a stay, and not deal with any of the questions raised.” But, he added, if the Court does not stay the case, then it should issue a ruling that “will give effect to the United States’ promises” (through the President) to carry out the World Court order for the 51 Mexican nationals’ benefit.

The Court is expected to decide the case later this spring.

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